As filed with the Securities and Exchange Commission on
July 12, 2011
Registration No.
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
American Axle &
Manufacturing, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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38-3138388
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(State or other jurisdiction
of incorporation of organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. employer
Identification No.)
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(Address including zip code, and telephone number, including
area code, of registrants principal executive offices)
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American Axle &
Manufacturing Holdings, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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38-3161171
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. employer
Identification No.)
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(Address including zip code, and telephone number, including
area code, of registrants principal executive offices)
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AAM International Holdings,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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38-3439761
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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AccuGear, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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26-3788013
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 46818
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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Colfor Manufacturing,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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34-1834325
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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DieTronik, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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26-3005324
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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MSP Industries
Corporation
(Exact name of registrant as
specified in its charter)
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Michigan
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One Dauch Drive
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38-2382767
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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Oxford Forge, Inc.
Exact name of registrant as
specified in its charter)
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Delaware
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One Dauch Drive
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83-0500168
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(State or other jurisdiction
of incorporation or organization)
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Detroit, Michigan 48211
(313) 758-2000
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(I.R.S. Employer
Identification No.)
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(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
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Steven R. Keyes
American Axle & Manufacturing, Inc.
One Dauch Drive
Detroit, Michigan 48211
(313) 758-2000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service for the registrants)
Copies to:
Lisa L. Jacobs, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
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If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same
offering.
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If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller reporting
company
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(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Aggregate
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Registration
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Securities to be Registered
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Registered
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Offering Price
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Fee
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Debt Securities, Guarantees(2), Warrants to Purchase Debt
Securities, Preferred Stock, Common Stock, Warrants to Purchase
Common Stock,
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(1)
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(1)
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(1)(3)
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(1)
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An unspecified aggregate initial offering price or number of the
securities of each identified class is being registered as may
from time to time be offered at unspecified prices. Separate
consideration may or may not be received for securities that are
issuable on exercise, conversion or exchange of other
securities. In accordance with Rules 456(b) and 457(r)
under the Securities Act of 1933, as amended, the registrants
are deferring payment of all of the registration fee and will
pay the registration fee subsequently in advance or on a
pay-as-you-go basis.
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(2)
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In accordance with Rule 457(n), no separate consideration will
be received for the guarantees. AAM International Holdings,
Inc., AccuGear, Inc., Colfor Manufacturing Inc., DieTronik,
Inc., MSP Industries Corporation, Oxford Forge, Inc., and
certain future subsidiaries may, jointly or severally, fully,
irrevocably and unconditionally guarantee on an unsecured basis
the debt securities of American Axle Manufacturing, Inc.
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(3)
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Pursuant to Rule 457(p), American Axle Manufacturing, Inc.
and American Axle Manufacturing Holdings, Inc. previously paid
registration fees for unsold securities in connection with
Registration Statement No.
333-162550,
filed on
Form S-3
in December 2009 and declared effective. Details about the fees
previously paid are set out below. Registration Statement No.
333-162550
is deregistered hereby.
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The amount previously paid relating to unsold primary securities
registered under Registration Statement
No. 333-162550
was $21,778.74, in connection with unsold primary securities in
the amount of $390,300,000.
PROSPECTUS
AMERICAN AXLE &
MANUFACTURING, INC.
AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC.
AAM International Holdings,
Inc.
AccuGear, Inc.
Colfor Manufacturing,
Inc.
DieTronik, Inc.
MSP Industries
Corporation
Oxford Forge, Inc.
Debt Securities
Guarantees
Warrants to Purchase Debt
Securities
Warrants to Purchase Common
Stock
Common Stock
Preferred Stock
We will provide the specific terms of these securities in
supplements or term sheets to this prospectus and whether an
offer will be made by us, a selling security holder or both. You
should read this prospectus, the prospectus supplements and term
sheets carefully before you invest.
We will not use this prospectus to confirm sales of any
securities unless it is attached to a prospectus supplement or a
term sheet.
American Axle & Manufacturing Holdings, Inc.s common
stock is listed on the New York Stock Exchange under the symbol
AXL.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
THE DATE OF THIS PROSPECTUS IS JULY 12, 2011.
TABLE OF
CONTENTS
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
accompanying prospectus supplement. No one has been authorized
to provide you with different information.
The securities are not being offered in any jurisdiction
where the offer is not permitted.
You should not assume that the information contained in or
incorporated by reference in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the
front of the documents.
i
RISK
FACTORS
Your investment in the securities involves certain risks. In
consultation with your own financial and legal advisers, you
should carefully consider whether an investment in the
securities is suitable for you. The securities are not an
appropriate investment for you if you do not understand the
terms of the securities or financial matters generally. Risks
relating to the securities will be set forth in the relevant
prospectus supplement for the offering of such securities. In
addition, certain factors that may adversely affect the business
of AAM Inc. (as defined below) or Holdings (as defined below)
are discussed in our periodic reports referred to in Where
You Can Find More Information, below. For example,
Holdings Annual Report on Form 10-K for the fiscal
year ended December 31, 2010 contains a discussion of
significant risks that could be relevant to an investment in the
securities. You should not purchase the securities described in
this prospectus unless you understand and know you can bear all
of the investment risks involved.
WHERE YOU
CAN FIND MORE INFORMATION
We are required to comply with the reporting requirements of the
Securities Exchange Act of 1934, as amended (the Exchange
Act), and, in accordance with those requirements, we file
combined reports, proxy statements and other information with
the Securities and Exchange Commission (the SEC).
Unless the context otherwise requires, references in this
prospectus to the company, we,
our, and us shall mean collectively
(i) American Axle & Manufacturing, Inc., or AAM
Inc., a Delaware corporation, and its direct and indirect
subsidiaries and (ii) American Axle &
Manufacturing Holdings, Inc., or Holdings, a Delaware
corporation and the direct parent corporation of AAM Inc.
You can call the SECs toll-free number at
1-800-SEC-0330
for further information. The SEC maintains a website at
www.sec.gov that contains reports, proxy and information
statements and other information regarding companies like ours
that file with the SEC electronically. The documents can be
found by searching the EDGAR archives at the SECs website
or can be inspected and copied at the Public Reference Section
of the SEC located at 100 F Street, NE,
Washington, D.C. 20549. Our SEC filings and other
information about us may also be obtained from our website at
www.aam.com, although information on our website does not
constitute a part of this prospectus. Material that we have
filed may also be inspected at the library of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose
important information to you by referring you to those documents
that are considered part of this prospectus. Later information
that we file will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings we make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
(i) after the date of the filing of this registration
statement and prior to effectiveness and (ii) until the
offering of the particular securities covered by a prospectus
supplement or term sheet has been completed. This prospectus is
part of a registration statement filed with the SEC.
We are incorporating by reference into this prospectus the
following documents filed with the SEC (excluding any portions
of such documents that have been furnished but not
filed for purposes of the Exchange Act):
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Holdings annual report on
Form 10-K
for the fiscal year ended December 31, 2010 filed with the
SEC on February 9, 2010 (including information specifically
incorporated by reference into the annual report on
Form 10-K
from Holdings proxy statement on Schedule 14A filed
with the SEC on March 21, 2011).
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Holdings quarterly report on
Form 10-Q
for the quarter ended March 31, 2011 filed with the SEC on
April 29, 2011.
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Holdings current reports on
Form 8-K
filed with the SEC on January 7, 2011, February 8,
2011 (excluding Item 2.02), May 4, 2011 and
July 1, 2011.
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The documents incorporated by reference in this prospectus are
available from us upon request. We will provide a copy of any
and all of the information that is incorporated by reference in
this prospectus to any person, without charge, upon written or
oral request. Requests for such copies should be directed to the
following:
American Axle & Manufacturing Holdings, Inc.
Attention: Investor Relations
One Dauch Drive
Detroit, Michigan
48211-1198
Telephone Number:
(313) 758-4814
Except as provided above, no other information, including, but
not limited to, information on our websites is incorporated by
reference in this prospectus.
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AMERICAN
AXLE & MANUFACTURING
We are a Tier I supplier to the automotive industry. We
manufacture, engineer, design and validate driveline and
drivetrain systems and related components and chassis modules
for light trucks, sport utility vehicles (SUVs),
passenger cars, crossover vehicles and commercial vehicles.
Driveline and drivetrain systems include components that
transfer power from the transmission and deliver it to the drive
wheels. Our driveline, drivetrain and related products include
axles, chassis modules, driveshafts, power transfer units,
transfer cases, chassis and steering components, driving heads,
crankshafts, transmission parts and metal-formed products.
We are the principal supplier of driveline components to General
Motors Company (GM) for its rear-wheel drive light
trucks and SUVs manufactured in North America, supplying
substantially all of GMs rear axle and front four-wheel
drive and all-wheel drive axle requirements for these vehicle
platforms.
We are the sole-source supplier to GM for certain axles and
other driveline products for the life of each GM vehicle program
covered by a Lifetime Program Contract (LPC).
Substantially all of our sales to GM are made pursuant to the
LPCs. The LPCs have terms equal to the lives of the relevant
vehicle programs or their respective derivatives, which
typically run 6 to 10 years, and require us to remain
competitive with respect to technology, design and quality.
We are also the principal supplier of driveline system products
for the Chrysler Group LLCs (Chrysler)
heavy-duty Dodge Ram full-size pickup trucks and its
derivatives. In addition to GM and Chrysler, we supply driveline
systems and other related components to Volkswagen AG, Scania
AB, PACCAR Inc., Harley-Davidson Inc., Deere &
Company, Tata Motors, Mack Trucks Inc., Nissan Motor Co., Ltd.,
Ford Motor Company and other original equipment manufacturers
and Tier I supplier companies.
USE OF
PROCEEDS
Except as may be described otherwise in a prospectus supplement
or term sheet, we will add the net proceeds from the sale of the
securities under this prospectus to our general funds and will
use them for working capital and other general corporate
purposes, which may include, among other things, reducing or
refinancing indebtedness or funding acquisitions.
PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC utilizing a shelf registration
process. Under this shelf process, we may sell any combination
of the following securities in one or more offerings:
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debt securities (debt securities), which may be
either senior (the senior securities) or
subordinated (the subordinated securities),
unsecured (unsecured debt securities) or secured
(secured debt securities) guaranteed by Holdings
and/or
certain subsidiaries of AAM Inc. which may include AAM
International Holdings, Inc., AccuGear, Inc., Colfor
Manufacturing, Inc., DieTronik, Inc., MSP Industries Corporation
and Oxford Forge, Inc. (collectively, the Subsidiary
Guarantors, and, together with Holdings, the
Guarantors);
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warrants to purchase debt securities (debt warrants);
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shares of the common stock of Holdings (common
stock);
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shares of Holdings preferred stock (preferred
stock); or
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warrants to purchase common stock of Holdings (common
stock warrants, and the shares underlying such common
stock warrants, the warrant shares).
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The terms of the securities will be determined at the time of
offering.
We will refer to the debt securities, debt warrants, common
stock warrants, warrant shares, the guarantees of the debt
securities, common stock and preferred stock, or any combination
of those securities, proposed to be sold under this prospectus
and the applicable prospectus supplement or term sheet as the
offered securities. The
2
offered securities, together with any debt securities, common
stock and preferred stock issuable upon exercise of debt
warrants, common stock warrants, warrant shares or conversion or
exchange of other offered securities, as applicable, will be
referred to as the securities.
You should rely only on the information contained or
incorporated by reference in this prospectus or prospectus
supplement. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus,
prospectus supplement, or any documents incorporated by
reference is accurate only as of the date on the front cover of
the applicable document. Our business, financial condition,
results of operations and prospects may have changed since then.
PROSPECTUS
SUPPLEMENT OR TERM SHEET
This prospectus provides you with a general description of the
debt securities, warrants to purchase debt securities, common
stock warrants, warrant shares, common stock and preferred stock
we may offer. Each time we sell securities, we will provide a
prospectus supplement or term sheet that will contain specific
information about the terms of that offering and whether
securities are being offered by us, a selling security holder or
both. The prospectus supplement or term sheet may also add to,
update or change information contained in this prospectus, and
accordingly, to the extent inconsistent, information in this
prospectus is superseded by the information in the prospectus
supplement or term sheet. You should read both this prospectus
and any prospectus supplement or term sheet together with the
additional information described under the heading Where
You Can Find More Information.
The prospectus supplement or term sheet to be attached to the
front of this prospectus will describe: the terms of the
securities offered, any initial public offering price, the price
paid to us for the securities, the net proceeds to us, the
manner of distribution and any underwriting compensation and the
other specific material terms related to the offering of these
securities.
For more detail on the terms of the securities, you should read
the exhibits filed with or incorporated by reference in our
Registration Statement.
FORWARD-LOOKING
STATEMENTS
Certain statements contained in this prospectus, or any
accompanying prospectus supplement and the documents
incorporated herein or therein by reference are forward-looking
in nature and relate to trends and events that may affect our
future financial position and operating results.
Such statements are forward-looking statements
within the meaning of the Private Securities Litigation Reform
Act of 1995 and relate to trends and events that may affect our
future financial position and operating results. The terms such
as will, may, could,
would, plan, believe,
expect, anticipate, intend,
project, and similar words of expressions, as well
as statements in future tense, are intended to identify
forward-looking statements.
Forward-looking statements should not be read as a guarantee of
future performance or results, and will not necessarily be
accurate indications of the times at, or by, which such
performance or results will be achieved. Forward-looking
statements are based on information available at the time those
statements are made
and/or
managements good faith belief as of that time with respect
to future events and are subject to risks and may differ
materially from those expressed in or suggested by the
forward-looking statements. Important factors that could cause
such differences include, but are not limited to:
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global economic conditions;
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our ability to comply with the definitive terms and conditions
of various commercial and financing arrangements with GM;
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reduced purchases of our products by GM, Chrysler or other
customers;
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reduced demand for our customers products (particularly
light trucks and SUVs produced by GM and Chrysler);
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availability of financing for working capital, capital
expenditures, research and development (R&D) or
other general corporate purposes, including our ability to
comply with financial covenants;
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our customers and suppliers availability of
financing for working capital, capital expenditures, R&D or
other general corporate purposes;
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our ability to achieve cost reductions through ongoing
restructuring actions;
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our ability to achieve the level of cost reductions required to
sustain global cost competitiveness;
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our ability, our suppliers ability and our customers
ability to avoid supply shortages as a result of recent events
in Japan or otherwise;
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our ability to maintain satisfactory labor relations and avoid
future work stoppages;
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our suppliers, our customers and their
suppliers ability to maintain satisfactory labor relations
and avoid work stoppages;
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additional restructuring actions that may occur;
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our ability to continue to implement improvements in our
U.S. labor cost structure;
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supply shortages or price increases in raw materials, utilities
or other operating supplies;
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our ability to consummate and integrate acquisitions and joint
ventures;
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our ability or our customers and suppliers ability
to successfully launch new product programs on a timely basis;
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our ability to realize the expected revenues from our new and
incremental business backlog;
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our ability to attract new customers and programs for new
products;
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our ability to develop and produce new products that reflect
market demand;
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lower-than-anticipated
market acceptance of new or existing products;
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our ability to respond to changes in technology, increased
competition or pricing pressures;
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price volatility in, or reduced availability of, fuel;
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adverse changes in laws, government regulations or market
conditions affecting our products or our customers
products (such as the Corporate Average Fuel Economy
regulations);
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risks inherent in our international operations (including
adverse changes in the political stability, taxes and other law
changes, potential disruption of production and supply, and
currency rate fluctuations);
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liabilities arising from warranty claims, product recall,
product liability and legal proceedings to which we are or may
become a party;
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changes in liabilities arising from pension and other
postretirement benefit obligations;
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risks of noncompliance with environmental regulations or risks
of environmental issues that could result in unforeseen costs at
our facilities;
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our ability to attract and retain key associates; and
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other unanticipated events and conditions that may hinder our
ability to compete.
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It is not possible to foresee or identify all such factors and
we make no commitment to update any forward-looking statement or
to disclose any facts, events or circumstances after the date
hereof that may affect the accuracy of any forward-looking
statement.
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DESCRIPTION
OF DEBT SECURITIES
We may issue debt securities in one or more distinct series.
This section summarizes the material terms of the debt
securities that are common to all series. Most of the financial
terms and other specific material terms of any series of debt
securities that we offer will be described in a prospectus
supplement or term sheet to be attached to the front of this
prospectus. Furthermore, since the terms of specific debt
securities may differ from the general information we have
provided below, you should rely on information in the prospectus
supplement or term sheet that contradicts different information
below.
As required by federal law for all bonds and debt securities of
companies that are publicly offered, the debt securities are
governed by a document called an indenture. An
indenture is a contract between us and a financial institution
acting as trustee on your behalf. Unless otherwise indicated in
a prospectus supplement, the trustee will be U.S. Bank
National Association. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default. There
are some limitations on the extent to which the trustee acts on
your behalf, described in the second paragraph under
Events of Default. Second, the trustee performs
certain administrative duties for us.
The term trustee refers to the senior trustee or the
subordinated trustee, as appropriate. We will refer to the
indenture that governs the debt securities as the
Indenture. The Indenture is subject to and governed
by the Trust Indenture Act of 1939, as amended (the
TIA).
The following summary does not purport to be complete, and is
subject to, and is qualified in its entirety by reference to,
all of the provisions of the debt securities and the Indenture.
We urge you to read the Indenture and the form of the debt
securities, which you may obtain from us upon request. As used
in this description, all references to AAM Inc.,
our company, the issuer, we,
us or our mean American Axle &
Manufacturing, Inc., excluding, unless otherwise expressly
stated or the context otherwise requires, its subsidiaries,
including the Subsidiary Guarantors, and all references to
Holdings mean American Axle &
Manufacturing Holdings, Inc., our parent corporation, excluding,
unless otherwise expressly stated or the context otherwise
requires, its subsidiaries. Holdings has no material operations
or assets other than its ownership of 100% of the issued and
outstanding common stock of American Axle &
Manufacturing, Inc., the issuer. The Subsidiary Guarantors are
wholly-owned subsidiaries of American Axle &
Manufacturing, Inc.
General
The debt securities will be AAM Inc.s obligations which
may be secured or unsecured. The senior unsecured securities
will rank equally with all of our other unsecured and
unsubordinated indebtedness and will be guaranteed by Holdings
and/or any Subsidiary Guarantors, if applicable. The Holdings
guarantee and any Subsidiary guarantees will rank equally with
all of their other unsecured and unsubordinated indebtedness.
Terms of secured debt securities and the related Holdings
guarantee and any Subsidiary guarantees will be more fully
described in a prospectus supplement. The subordinated
securities will be subordinated in right of payment to the prior
payment in full of AAM Inc.s senior indebtedness as more
fully described in a prospectus supplement or term sheet. The
subordinated debt securities will be guaranteed on a
subordinated basis by Holdings, and, if applicable, the
Subsidiary Guarantors, as more fully described in a prospectus
supplement or term sheet.
The Indenture provides that any debt securities proposed to be
sold under this prospectus and the attached prospectus
supplement or term sheet, including the guarantee by Holdings
and any Subsidiary guarantees (offered debt
securities) and any debt securities issuable upon the
exercise of debt warrants or upon conversion or exchange of
other offered securities (underlying debt
securities), as well as other unsecured debt securities,
may be issued under the Indenture in one or more series.
5
You should read the prospectus supplement or term sheet for the
material terms of the offered debt securities and any underlying
debt securities, including the following:
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The title of the debt securities and whether the debt securities
will be senior securities or subordinated securities.
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The total principal amount of the debt securities and any limit
on the total principal amount of debt securities of the series.
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If not the principal amount of the debt securities, the portion
of the principal amount payable upon acceleration of the
maturity of the debt securities or how this portion will be
determined.
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The date or dates, or how the date or dates will be determined
or extended, when the principal of the debt securities will be
payable.
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The interest rate or rates, which may be fixed or variable, that
the debt securities will bear, if any, or how the rate or rates
will be determined, the date or dates from which any interest
will accrue or how the date or dates will be determined, the
interest payment dates, any record dates for these payments and
the basis upon which interest will be calculated if other than
that of a
360-day
year
of twelve
30-day
months.
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Any optional redemption provisions.
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Whether debt securities are secured and the terms of such
security interests.
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Whether debt securities are not to be guaranteed by Holdings and
any modifications to such guarantee.
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Whether debt securities are guaranteed by any Subsidiary
Guarantors and any deletions from, modifications to, or
additions to such guarantees, Events of Default or covenants
with respect to such guarantees.
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Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities.
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If other than registered debt securities, the form in which we
will issue the debt securities; whether we will have the option
of issuing debt securities in certificated form;
whether we will have the option of issuing certificated debt
securities in bearer form if we issue the securities outside the
United States to
non-U.S. persons;
any restrictions on the offer, sale or delivery of bearer
securities and the terms, if any, upon which bearer securities
of the series may be exchanged for registered securities of the
series and vice versa (if permitted by applicable laws and
regulations).
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If other than U.S. dollars, the currency or currencies in
which the debt securities are denominated
and/or
payable.
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Whether the amount of payments of principal, premium or
interest, if any, on the debt securities will be determined with
reference to an index, formula or other method (which could be
based on one or more currencies, commodities, equity indices or
other indices) and how these amounts will be determined.
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The place or places, if any, other than or in addition to The
City of New York, of payment, transfer, conversion
and/or
exchange of the debt securities.
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If other than denominations of $1,000 or any integral multiple
in the case of registered securities issued in certificated form
and $5,000 in the case of bearer securities, the denominations
in which the offered debt securities will be issued.
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The applicability of the provisions of Article Fourteen of
the Indenture described under defeasance and any
provisions in modification of, in addition to or in lieu of any
of these provisions.
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Whether and under what circumstances we will pay additional
amounts, as contemplated by Section 1011 of the Indenture,
in respect of any tax, assessment or governmental charge and, if
so, whether we will have the option to redeem the debt
securities rather than pay the additional amounts (and the terms
of this option).
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Whether the securities are subordinated and the terms of such
subordination.
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Any provisions granting special rights to the holders of the
debt securities upon the occurrence of specified events.
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Any changes or additions to the Events of Default or covenants
contained in the Indenture.
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Whether the debt securities will be convertible into or
exchangeable for any other securities and the applicable terms
and conditions.
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Any other material terms of the debt securities and guarantees.
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For purposes of this prospectus, any reference to the payment of
principal or premium or interest, if any, on the debt securities
will include additional amounts if required by the terms of the
debt securities.
The Indenture does not limit the amount of debt securities that
may be issued thereunder from time to time. Debt securities
issued under the Indenture, when a single trustee is acting for
all debt securities issued under the Indenture, are called the
indenture securities. The Indenture also provides
that there may be more than one trustee thereunder, each with
respect to one or more different series of indenture securities.
See Resignation of Trustee below. At a time when two
or more trustees are acting under the Indenture, each with
respect to only certain series, the term indenture
securities means the one or more series of debt securities
with respect to which each respective trustee is acting. In the
event that there is more than one trustee under the Indenture,
the powers and trust obligations of each trustee described in
this prospectus will extend only to the one or more series of
indenture securities for which it is trustee. If two or more
trustees are acting under the Indenture, then the indenture
securities for which each trustee is acting would be treated as
if issued under separate indentures.
The Indenture does not contain any provisions that give you
protection in the event we issue a large amount of debt or we
are acquired by another entity.
We refer you to the prospectus supplement or term sheet for
information with respect to any deletions from, modifications of
or additions to the Events of Default or our covenants that are
described below, including any addition of a covenant or other
provision providing event risk or similar protection.
We have the ability to issue indenture securities with terms
different from those of indenture securities previously issued
and, without the consent of the holders thereof, to reopen a
previous issue of a series of indenture securities and issue
additional indenture securities of that series unless the
reopening was restricted when that series was created.
Unless otherwise specified in the applicable prospectus
supplement or term sheet, the debt securities will be
denominated in U.S. dollars and all payments on the debt
securities will be made in U.S. dollars.
Payment of the purchase price of the debt securities must be
made in immediately available funds.
As used in this prospectus, Business Day means any
day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The
City of New York;
provided
,
however
, that, with
respect to foreign currency debt securities, the day is also not
a day on which commercial banks are authorized or required by
law, regulation or executive order to close in the Principal
Financial Center (as defined below) of the country issuing the
specified currency (or, if the specified currency is the euro,
the day is also a day on which the Trans-European Automated Real
Time Gross Settlement Express Transfer (TARGET)
System is operating, which we refer to as a TARGET
Business Day); and
provided further
that, with
respect to debt securities as to which LIBOR is an applicable
interest rate basis, the day is also a London Business Day.
London Business Day means a day on which commercial
banks are open for business (including dealings in the
designated LIBOR Currency) in London.
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Principal Financial Center
means (i) the
capital city of the country issuing the specified currency or
(ii) the capital city of the country to which the
designated LIBOR Currency relates, as applicable, except that
the term Principal Financial Center means the
following cities in the case of the following currencies:
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Currency
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Principal Financial Center
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U.S. dollars
Australian dollars
Canadian dollars
New Zealand dollars
South African rand
Swiss francs
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The City of New York
Sydney
Toronto
Auckland
Johannesburg
Zurich
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and in the event the LIBOR Currency is the euro, the
Principal Financial Center is London.
The authorized denominations of debt securities denominated in
U.S. dollars will be integral multiples of $1,000. The
authorized denominations of foreign currency debt securities
will be set forth in the applicable prospectus supplement or
term sheet.
Optional
Redemption, Repayment and Repurchase
If specified in a prospectus supplement or term sheet, we may
redeem the debt securities at our option, in whole at any time
or in part from time to time, at a redemption price equal to the
greater of (1) 100% of the principal amount of the debt
securities to be redeemed and (2) as determined by the
Quotation Agent, the sum of the present values of the remaining
scheduled payments of principal and interest on the debt
securities to be redeemed (not including any portion of those
payments of interest accrued to the date of redemption) from the
redemption date to the maturity date of the debt securities
being redeemed, in each case discounted to the date of
redemption on a semi-annual basis (assuming a
360-day
year
consisting of twelve
30-day
months) at the Adjusted Treasury Rate plus the rate specified in
a prospectus supplement or term sheet, plus, in each case,
accrued and unpaid interest on the debt securities to the date
of redemption.
Adjusted Treasury Rate
means, with respect to
any date of redemption, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for that date of redemption.
Comparable Treasury Issue
means, with respect
to a redemption date, (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if the Quotation Agent obtains fewer
than five such Reference Treasury Dealer Quotations, the average
of all such quotations.
Comparable Treasury Price
means, with respect
to any date of redemption, (1) the average of the Reference
Treasury Dealer Quotations for the date of redemption, after
excluding the highest and lowest Reference Treasury Dealer
Quotations or (2) if the Quotation Agent obtains fewer than
four Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations.
Quotation Agent
means the underwriter, or
another Reference Treasury Dealer appointed by us.
Reference Treasury Dealer
will be specified
in the prospectus supplement or term sheet.
Reference Treasury Dealer Quotations
means,
with respect to each reference treasury dealer and any
redemption date, the average, as determined by the Quotation
Agent, of the bid and ask prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Quotation Agent at
5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
We will mail notice of any redemption at least 30 days, but
not more than 60 days, before the date of redemption to
each holder of the debt securities to be redeemed. If less than
all of the debt securities are to be redeemed at any time, the
trustee will select debt securities to be redeemed on a pro rata
basis or by any other method the trustee deems fair and
appropriate. Unless we default in payment of the redemption
price, on and after the date of redemption, interest will cease
to accrue on the debt securities or portions thereof called for
redemption.
8
Regardless of anything in this prospectus to the contrary, if a
debt security is an OID Note (as defined below) (other than an
Indexed Note), the amount payable in the event of redemption or
repayment prior to its stated maturity will be the amortized
face amount on the redemption or repayment date, as the case may
be. The amortized face amount of an OID Note will be equal to
(i) the issue price specified in the applicable prospectus
supplement or term sheet plus (ii) that portion of the
difference between the issue price and the principal amount of
the OID Note that has accrued at the yield to maturity described
in the prospectus supplement or term sheet (computed in
accordance with generally accepted U.S. bond yield
computation principles) by the redemption or repayment date.
However, in no case will the amortized face amount of an OID
Note exceed its principal amount.
We may at any time purchase debt securities at any price in the
open market or otherwise. We may hold, resell or surrender for
cancellation any debt securities that we purchase.
Conversion
and Exchange
If any debt securities are convertible into or exchangeable for
other securities, the prospectus supplement or term sheet will
explain the terms and conditions of the conversion or exchange,
including the conversion price or exchange ratio (or the
calculation method), the conversion or exchange period (or how
the period will be determined), if conversion or exchange will
be mandatory or at the option of the holder or us, provisions
for adjusting the conversion price or the exchange ratio and
provisions affecting conversion or exchange in the event of the
redemption of the underlying debt securities. These terms may
also include provisions under which the number or amount of
other securities to be received by the holders of the debt
securities upon conversion or exchange would be calculated
according to the market price of the other securities as of a
time stated in the prospectus supplement or term sheet.
Issuance
of Securities in Registered Form
We may issue the debt securities in registered form, in which
case we will issue them in book-entry form only. Debt securities
issued in book-entry form will be represented by global
securities. We also will have the option of issuing debt
securities in non-registered form as bearer securities if we
issue the securities outside the United States to
non-U.S. persons.
In that case, the prospectus supplement or term sheet will set
forth the mechanics for holding the bearer securities, including
the procedures for receiving payments, for exchanging the bearer
securities for registered securities of the same series, and for
receiving notices. The prospectus supplement or term sheet will
also describe the requirements with respect to our maintenance
of offices or agencies outside the United States and the
applicable U.S. federal tax law requirements.
Book-Entry Holders.
We will issue registered
debt securities in book-entry form only, unless we specify
otherwise in the applicable prospectus supplement or term sheet.
This means debt securities will be represented by one or more
global securities registered in the name of a depositary that
will hold them on behalf of financial institutions that
participate in the depositarys book-entry system. These
participating institutions, in turn, hold beneficial interests
in the debt securities held by the depositary or its nominee.
These institutions may hold these interests on behalf of
themselves or customers.
Under the Indenture, only the person in whose name a debt
security is registered is recognized as the holder of that debt
security. Consequently, for debt securities issued in book-entry
form, we will recognize only the depositary as the holder of the
debt securities and we will make all payments on the debt
securities to the depositary. The depositary will then pass
along the payments it receives to its participants, which, in
turn, will pass the payments along to their customers who are
the beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their
customers; they are not obligated to do so under the terms of
the debt securities.
As a result, investors will not own debt securities directly.
Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution
that participates in the depositarys book-entry system or
holds an interest through a participant. As long as the debt
securities are represented by one or more global securities,
investors will be indirect holders, and not holders of the debt
securities.
Street Name Holders.
In the future, we may
issue debt securities in certificated form or terminate a global
security. In these cases, investors may choose to hold their
debt securities in their own names or in street
name. Debt securities held in street name are registered
in the name of a bank, broker or other financial institution
chosen
9
by the investor, and the investor would hold a beneficial
interest in those debt securities through the account he or she
maintains at that institution.
For debt securities held in street name, we will recognize only
the intermediary banks, brokers and other financial institutions
in whose names the debt securities are registered as the holders
of those debt securities and we will make all payments on those
debt securities to them. These institutions will pass along the
payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer
agreements or because they are legally required to do so.
Investors who hold debt securities in street name will be
indirect holders, and not holders, of the debt securities.
Legal Holders.
Our obligations, as well as the
obligations of the applicable trustee and those of any third
parties employed by us or the applicable trustee, run only to
the legal holders of the debt securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a debt security or has no choice because we are
issuing the debt securities only in book-entry form.
For example, once we make a payment or give a notice to the
holder, we have no further responsibility for the payment or
notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along
to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for
example, to amend the Indenture or to relieve us of the
consequences of a default or of our obligation to comply with a
particular provision of the Indenture), we would seek the
approval only from the holders, and not the indirect holders, of
the debt securities. Whether and how the holders contact the
indirect holders is up to the holders.
When we refer to you, we mean those who invest in the debt
securities being offered by this prospectus, the prospectus
supplement or term sheet whether they are the holders or only
indirect holders of those debt securities. When we refer to your
debt securities, we mean the debt securities in which you hold a
direct or indirect interest.
Special Considerations for Indirect
Holders.
If you hold debt securities through a
bank, broker or other financial institution, either in
book-entry form or in street name, we urge you to check with
that institution to find out:
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how it handles securities payments and notices,
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whether it imposes fees or charges,
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how it would handle a request for the holders consent, if
ever required,
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whether and how you can instruct it to send you debt securities
registered in your own name so you can be a holder, if that is
permitted in the future for a particular series of debt
securities,
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how it would exercise rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests, and
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if the debt securities are in book-entry form, how the
depositarys rules and procedures will affect these matters.
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Interest
and Interest Rates
General
Each debt security will begin to accrue interest from the date
it is originally issued. The related prospectus supplement or
term sheet will specify each debt security as a Fixed Rate
Note, a Floating Rate Note, an
Amortizing Note or an Indexed Note and
describe the method of determining the interest rate, including
any spread
and/or
spread multiplier. For an Indexed Note, the related prospectus
supplement or term sheet also will describe the method for the
calculation and payment of principal and interest. The
prospectus supplement or term sheet for a Floating Rate Note or
Indexed Note may also specify a maximum and a minimum interest
rate.
A debt security may be issued as a Fixed Rate Note or a Floating
Rate Note or as a Note that combines fixed and floating rate
terms.
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Interest rates offered with respect to debt securities may
differ depending upon, among other things, the aggregate
principal amount of debt securities purchased in any single
transaction. Debt securities with similar variable terms but
different interest rates, as well as debt securities with
different variable terms, may be offered concurrently to
different investors. Interest rates or formulas and other terms
of debt securities are subject to change from time to time, but
no such change will affect any debt security already issued or
as to which an offer to purchase has been accepted.
Interest on the debt securities denominated in U.S. dollars
will be paid by check mailed on an Interest Payment Date (as
defined below) other than a Maturity Date (as defined below) to
the persons entitled thereto to the addresses of such holders as
they appear in the security register or, at our option, by wire
transfer to a bank account maintained by the holder. The
principal of, premium, if any, and interest on debt securities
denominated in U.S. dollars, together with interest accrued
and unpaid thereon, due on the Maturity Date will be paid in
immediately available funds upon surrender of such debt
securities at the corporate trust office of the trustee in The
City of New York, or, at our option, by wire transfer of
immediately available funds to an account with a bank designated
at least 15 calendar days prior to the Maturity Date by the
applicable registered holder, provided the particular bank has
appropriate facilities to receive these payments and the
particular debt security is presented and surrendered at the
office or agency maintained by us for this purpose in the
Borough of Manhattan, The City of New York, in time for the
trustee to make these payments in accordance with its normal
procedures.
Fixed
Rate Notes
The prospectus supplement or term sheet for Fixed Rate Notes
will describe a fixed interest rate payable semiannually in
arrears on the dates specified in such term sheet or prospectus
supplement (each, with respect to Fixed Rate Notes, an
Interest Payment Date). Interest on Fixed Rate Notes
will be computed on the basis of a
360-day
year
of twelve
30-day
months. If the stated maturity date, any redemption date or any
repayment date (together referred to as the Maturity
Date) or an Interest Payment Date for any Fixed Rate Note
is not a Business Day, principal of, premium, if any, and
interest on that Note will be paid on the next Business Day, and
no interest will accrue from and after the Maturity Date or
Interest Payment Date. Interest on Fixed Rate Notes will be paid
to holders of record as of each Regular Record Date. A
Regular Record Date will be the fifteenth day
(whether or not a Business Day) next preceding the applicable
Interest Payment Date.
Each interest payment on a Fixed Rate Note will include interest
accrued from, and including, the issue date or the last Interest
Payment Date, as the case may be, to but excluding the
applicable Interest Payment Date or the Maturity Date, as the
case may be.
Original
Issue Discount Notes
We may issue original issue discount debt securities (including
zero coupon debt securities) (OID Notes), which are
debt securities issued at a discount from the principal amount
payable on the Maturity Date. There may not be any periodic
interest payments on OID Notes. For OID Notes, interest normally
accrues during the life of the OID Note and is paid on the
Maturity Date. Upon a redemption, repayment or acceleration of
the maturity of an OID Note, the amount payable will be
determined as set forth under Optional
Redemption, Repayment and Repurchase. This amount normally
is less than the amount payable on the stated maturity date.
Amortizing
Notes
We may issue amortizing debt securities, which are Fixed Rate
Notes for which combined principal and interest payments are
made in installments over the life of each debt securities
(Amortizing Notes). Payments on Amortizing Notes are
applied first to interest due and then to the reduction of the
unpaid principal amount. The related prospectus supplement or
term sheet for an Amortizing Note will include a table setting
forth repayment information.
Floating
Rate Notes
Each Floating Rate Note will have an interest rate basis or
formula. That basis or formula may be based on:
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the CD Rate;
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the Commercial Paper Rate;
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LIBOR;
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EURIBOR;
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the Federal Funds Rate;
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the Prime Rate;
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the Treasury Rate;
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the CMT Rate;
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the Eleventh District Cost of Funds Rate; or
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another negotiated interest rate basis or formula.
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The prospectus supplement or term sheet will also indicate any
spread
and/or
spread multiplier, which would be applied to the interest rate
formula to determine the interest rate. Any Floating Rate Note
may have a maximum or minimum interest rate limitation. In
addition to any maximum interest rate limitation, the interest
rate on the Floating Rate Notes will in no event be higher than
the maximum rate permitted by New York law, as the same may be
modified by United States law for general application.
We will appoint a calculation agent to calculate interest rates
on the Floating Rate Notes. Unless we identify a different party
in the prospectus supplement or term sheet, the paying agent
will be the calculation agent for each Note.
Unless otherwise specified in a prospectus supplement or term
sheet, the Calculation Date, if applicable, relating
to an Interest Determination Date (as described below under
Date Interest Rate is Determined) will
be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day, or (ii) the Business
Day immediately preceding the relevant Interest Payment Date or
the Maturity Date, as the case may be.
Upon the request of the beneficial holder of any Floating Rate
Note, the calculation agent will provide the interest rate then
in effect and, if different, when available, the interest rate
that will become effective on the next Interest Reset Date for
the Floating Rate Note.
Change of Interest Rate.
The interest rate on
each Floating Rate Note may be reset daily, weekly, monthly,
quarterly, semiannually, annually or on some other specified
basis (each, an Interest Reset Date). The Interest
Reset Date will be:
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for Notes with interest that resets daily, each Business Day;
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for Notes (other than Treasury Rate Notes) with interest that
resets weekly, Wednesday of each week;
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for Treasury Rate Notes with interest that resets weekly,
Tuesday of each week;
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for Notes with interest that resets monthly, the third Wednesday
of each month;
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for Notes with interest that resets quarterly, the third
Wednesday of March, June, September and December of each year;
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for Notes with interest that resets semiannually, the third
Wednesday of each of the two months of each year indicated in
the applicable prospectus supplement or term sheet; and
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for Notes with interest that resets annually, the third
Wednesday of the month of each year indicated in the applicable
prospectus supplement or term sheet.
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The related prospectus supplement or term sheet will describe
the initial interest rate or interest rate formula on each Note.
That rate is effective until the following Interest Reset Date.
Thereafter, the interest rate will be the rate determined on
each Interest Determination Date. Each time a new interest rate
is determined, it becomes effective on the following Interest
Reset Date. If any Interest Reset Date is not a Business Day,
then the Interest Reset Date is postponed to the next Business
Day, except, in the case of LIBOR and EURIBOR Notes, if the next
Business Day is in the next calendar month, the Interest Reset
Date is the immediately preceding Business Day.
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Date Interest Rate Is Determined.
The Interest
Determination Date for all CD and CMT Rate Notes is the second
Business Day before the Interest Reset Date and for all LIBOR
Notes will be the second London Business Day immediately
preceding the applicable Interest Reset Date (unless the LIBOR
Currency is Sterling, in which case the Interest Determination
Date will be the Interest Reset Date).
The Interest Determination Date for Treasury Rate Notes will be
the day of the week in which the Interest Reset Date falls on
which Treasury bills of the Index Maturity are normally
auctioned. Treasury bills are usually sold at auction on Monday
of each week, unless that day is a legal holiday, in which case
the auction is usually held on Tuesday. Sometimes, the auction
is held on the preceding Friday. If an auction is held on the
preceding Friday, that day will be the Interest Determination
Date relating to the Interest Reset Date occurring in the next
week.
The Interest Determination Date for all Commercial Paper,
Federal Funds and Prime Rate Notes will be the first Business
Day preceding the Interest Reset Date.
The Interest Determination Date for EURIBOR Notes will be the
second TARGET Business Day immediately preceding the applicable
Interest Reset Date.
The Interest Determination Date for an Eleventh District Cost of
Funds Rate Note is the last Business Day of the month
immediately preceding the applicable Interest Reset Date in
which the Federal Home Loan Bank of San Francisco published
the applicable rate.
The Interest Determination Date relating to a Floating Rate Note
with an interest rate that is determined by reference to two or
more interest rate bases will be the most recent Business Day
which is at least two Business Days before the applicable
Interest Reset Date for each interest rate for the applicable
Floating Rate Note on which each interest rate basis is
determinable.
Payment of Interest.
Interest is paid as
follows:
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for Notes with interest that resets daily, weekly or monthly, on
the third Wednesday of each month;
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for Notes with interest payable quarterly, on the third
Wednesday of March, June, September, and December of each year;
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for Notes with interest payable semiannually, on the third
Wednesday of each of the two months specified in the applicable
prospectus supplement or term sheet;
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for Notes with interest payable annually, on the third Wednesday
of the month specified in the applicable prospectus supplement
or term sheet (each of the above, with respect to Floating Rate
Notes, an Interest Payment Date); and
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at maturity, redemption or repayment.
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Each interest payment on a Floating Rate Note will include
interest accrued from, and including, the issue date or the last
Interest Payment Date, as the case may be, to but excluding the
applicable Interest Payment Date or the Maturity Date, as the
case may be.
Interest on a Floating Rate Note will be payable beginning on
the first Interest Payment Date after its issue date to holders
of record at the close of business on each Regular Record Date,
which is the fifteenth day (whether or not a Business Day) next
preceding the applicable Interest Payment Date, unless the issue
date falls after a Regular Record Date and on or prior to the
related Interest Payment Date, in which case payment will be
made to holders of record at the close of business on the
Regular Record Date next preceding the second Interest Payment
Date following the issue date. If an Interest Payment Date (but
not the Maturity Date) is not a Business Day, then the Interest
Payment Date will be postponed to the next Business Day, except
in the case of LIBOR and EURIBOR Notes, if the next Business Day
is in the next calendar month, the Interest Payment Date will be
the immediately preceding Business Day. If the Maturity Date of
any Floating Rate Note is not a Business Day, principal of,
premium, if any, and interest on that Note will be paid on the
next Business Day, and no interest will accrue from and after
the Maturity Date.
Accrued interest on a Floating Rate Note is calculated by
multiplying the principal amount of a Note by an accrued
interest factor. The accrued interest factor is the sum of the
interest factors calculated for each day in the
13
period for which accrued interest is being calculated. The
interest factor for each day is computed by dividing the
interest rate in effect on that day by (1) the actual
number of days in the year, in the case of Treasury Rate Notes
or CMT Rate Notes, or (2) 360, in the case of other
Floating Rate Notes. The interest factor for Floating Rate Notes
for which the interest rate is calculated with reference to two
or more interest rate bases will be calculated in each period in
the same manner as if only one of the applicable interest rate
bases applied. All percentages resulting from any calculation
are rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point
rounded upward. For example, 9.876545% (or .09876545) will be
rounded to 9.87655% (or .0987655). Dollar amounts used in the
calculation are rounded to the nearest cent (with one-half cent
being rounded upward).
CD Rate Notes.
The CD Rate for any
Interest Determination Date is the rate on that date for
negotiable U.S. dollar certificates of deposit having the
Index Maturity described in the related prospectus supplement or
term sheet, as published in H.15(519) prior to 3:00 P.M.,
New York City time, on the Calculation Date, for that Interest
Determination Date under the heading CDs (secondary
market). The Index Maturity is the period to
maturity of the instrument or obligation with respect to which
the related interest rate basis or formula will be calculated.
The following procedures will be followed if the CD Rate cannot
be determined as described above:
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If the above rate is not published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date, the
CD Rate will be the rate on that Interest Determination Date for
negotiable United States dollar certificates of deposit of the
Index Maturity described in the prospectus supplement or term
sheet as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying
such rate, under the caption CDs (secondary market).
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If that rate is not published in H.15(519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York
City time, on the Calculation Date, then the calculation agent
will determine the CD Rate to be the average of the secondary
market offered rates as of 10:00 A.M., New York City time,
on that Interest Determination Date, quoted by three leading
nonbank dealers of negotiable U.S. dollar certificates of
deposit in New York City (which may include an agent or its
affiliates) for negotiable U.S. dollar certificates of
deposit of major United States money-center banks with a
remaining maturity closest to the Index Maturity in an amount
that is representative for a single transaction in the market at
that time described in the prospectus supplement or term sheet.
The calculation agent will select the three dealers referred to
above.
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If fewer than three dealers are quoting as mentioned above, the
CD Rate will remain the CD Rate then in effect on that Interest
Determination Date.
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H.15(519)
means the weekly statistical
release designated as such, or any successor publication,
published by the Board of Governors of the Federal Reserve
System.
H.15 Daily Update
means the daily update of
H.15(519), available through the web site of the Board of
Governors of the Federal Reserve System at
http://www.federalreserve.gov/releases/h15/update,
or any successor site or publication.
Commercial Paper Rate Notes. The
Commercial Paper Rate for any Interest
Determination Date is the Money Market Yield of the rate on that
date for commercial paper having the Index Maturity described in
the related prospectus supplement or term sheet, as published in
H.15(519) prior to 3:00 PM., New York City time, on the
Calculation Date for that Interest Determination Date under the
heading Commercial Paper Nonfinancial.
The following procedures will be followed if the Commercial
Paper Rate cannot be determined as described above:
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If the above rate is not published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date, the
Commercial Paper Rate will be the Money Market Yield of the rate
on that Interest Determination Date for commercial paper having
the Index Maturity described in the prospectus supplement or
term sheet, as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying
such rate, under the caption Commercial Paper
Nonfinancial.
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If that rate is not published in H.15(519), H.15 Daily Update or
another recognized electronic source by 3:00 PM., New York
City time, on the Calculation Date, then the calculation agent
will determine the Commercial Paper Rate to be the Money Market
Yield of the average of the offered rates of three leading
dealers of U.S. dollar commercial paper in New York City
(which may include an agent or its affiliates) as of
11:00 A.M., New York City time, on that Interest
Determination Date for commercial paper having the Index
Maturity described in the prospectus supplement or term sheet
placed for an industrial issuer whose bond rating is
Aa, or the equivalent, from a nationally recognized
statistical rating organization. The calculation agent will
select the three dealers referred to above.
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If fewer than three dealers selected by the calculation agent
are quoting as mentioned above, the Commercial Paper Rate will
remain the Commercial Paper Rate then in effect on that Interest
Determination Date.
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Money Market Yield
means a yield (expressed
as a percentage) calculated in accordance with the following
formula:
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Money Market Yield =
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D360
360 − (D
M)
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100
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where D refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and expressed
as a decimal, and M refers to the actual number of
days in the reset period for which interest is being calculated.
LIBOR Notes.
The LIBOR for any
Interest Determination Date is the rate for deposits in the
LIBOR Currency having the Index Maturity specified in such
pricing supplement or term sheet as such rate is displayed on
Reuters (or any successor service) on page LIBOR01 (or any
other page as may replace such page on such service for the
purpose of displaying the London interbank rates of major banks
for the designated LIBOR Currency) (Reuters
Page LIBOR01) as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date.
The following procedure will be followed if LIBOR cannot be
determined as described above:
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The calculation agent shall request the principal London offices
of each of four major reference banks (which may include
affiliates of the agents) in the London interbank market, as
selected by the calculation agent to provide the calculation
agent with its offered quotation for deposits in the designated
LIBOR Currency for the period of the Index Maturity specified in
the applicable pricing supplement or term sheet, commencing on
the related Interest Reset Date, to prime banks in the London
interbank market at approximately 11:00 a.m., London time,
on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in the
designated LIBOR Currency in such market at such time. If at
least two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean
calculated by the calculation agent of such quotations. If fewer
than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean
calculated by the calculation agent of the rates quoted at
approximately 11:00 a.m., in the applicable Principal
Financial Center (as described above), on such LIBOR Interest
Determination Date by three major banks (which may include
affiliates of the agents) in such Principal Financial Center
selected by the calculation agent for loans in the designated
LIBOR Currency to leading European banks, having the Index
Maturity specified in the applicable pricing supplement or term
sheet and in a principal amount that is representative for a
single transaction in the designated LIBOR Currency in such
market at such time;
provided
,
however
, that if
the banks so selected by the calculation agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such
LIBOR Interest Determination Date.
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LIBOR Currency
means the currency specified
in the applicable prospectus supplement or term sheet as to
which LIBOR shall be calculated or, if no such currency is
specified in the applicable prospectus supplement or term sheet,
U.S. dollars.
EURIBOR Notes.
The EURIBOR for any
Interest Determination Date is the offered rate for deposits in
euro having the Index Maturity specified in the applicable
pricing supplement or term sheet, beginning on the
15
second TARGET Business Day after such EURIBOR Interest
Determination Date, as that rate appears on Reuters
Page EURIBOR 01 as of 11:00 A.M., Brussels time, on
such EURIBOR Interest Determination Date.
The following procedure will be followed if EURIBOR cannot be
determined as described above:
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EURIBOR will be determined on the basis of the rates, at
approximately 11:00 A.M., Brussels time, on such EURIBOR
Interest Determination Date, at which deposits of the following
kind are offered to prime banks in the euro-zone interbank
market by the principal euro-zone office of each of four major
banks in that market selected by the calculation agent: euro
deposits having such EURIBOR Index Maturity, beginning on such
EURIBOR Interest Reset Date, and in a representative amount. The
calculation agent will request that the principal euro-zone
office of each of these banks provide a quotation of its rate.
If at least two quotations are provided, EURIBOR for such
EURIBOR Interest Determination Date will be the arithmetic mean
of the quotations.
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If fewer than two quotations are provided as described above,
EURIBOR for such EURIBOR Interest Determination Date will be the
arithmetic mean of the rates for loans of the following kind to
leading euro-zone banks quoted, at approximately
11:00 A.M., Brussels time on that Interest Determination
Date, by three major banks in the euro-zone selected by the
calculation agent: loans of euro having such EURIBOR Index
Maturity, beginning on such EURIBOR Interest Reset Date, and in
an amount that is representative of a single transaction in euro
in that market at the time.
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If fewer than three banks selected by the calculation agent are
quoting as described above, EURIBOR for the new interest period
will be EURIBOR in effect for the prior interest period. If the
initial base rate has been in effect for the prior interest
period, however, it will remain in effect for the new interest
period.
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Federal Funds Rate Notes.
The Federal
Funds Rate will be calculated by reference to either the
Federal Funds (Effective) Rate, the Federal
Funds Open Rate or the Federal Funds Target
Rate, as specified in the applicable pricing supplement or
term sheet. The Federal Funds Rate is the rate determined by the
calculation agent, with respect to any Interest Determination
Date relating to a Floating Rate Note for which the interest
rate is determined with reference to the Federal Funds Rate (a
Federal Funds Rate Interest Determination Date), in
accordance with the following provisions:
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If Federal Funds (Effective) Rate is the specified Federal Funds
Rate in the applicable pricing supplement or term sheet, the
Federal Funds Rate as of the applicable Federal Funds Rate
Interest Determination Date shall be the rate with respect to
such date for United States dollar federal funds as published in
H.15(519) opposite the caption Federal funds
(effective), as such rate is displayed on Reuters on
page FEDFUNDS1 (or any other page as may replace such page
on such service) (Reuters Page FEDFUNDS1) under
the heading EFFECT, or, if such rate is not so
published by 3:00 P.M., New York City time, on the
calculation date, the rate with respect to such Federal Funds
Rate Interest Determination Date for United States dollar
federal funds as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying
such rate, under the caption Federal funds
(effective).
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The following procedure will be followed if Federal Funds
(Effective) Rate is the specified Federal Funds Rate in
the applicable pricing supplement or term sheet and such Federal
Funds Rate cannot be determined as described above. The Federal
Funds Rate with respect to such Federal Funds Rate Interest
Determination Date shall be calculated by the calculation agent
and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds
arranged by three leading brokers of U.S. dollar federal
funds transactions in New York City (which may include the
agents or their affiliates) selected by the calculation agent,
prior to 9:00 A.M., New York City time, on the Business Day
following such Federal Funds Rate Interest Determination Date;
provided
,
however
, that if the brokers so selected
by the calculation agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal
Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination
Date.
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If Federal Funds Open Rate is the specified Federal Funds Rate
in the applicable pricing supplement or term sheet, the Federal
Funds Rate as of the applicable Federal Funds Rate Interest
Determination Date shall be the rate on such date under the
heading Federal Funds for the relevant Index
Maturity and opposite the
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caption Open as such rate is displayed on Reuters on
page 5 (or any other page as may replace such page on such
service) (Reuters Page 5), or, if such rate
does not appear on Reuters Page 5 by 3:00 P.M., New
York City time, on the calculation date, the Federal Funds Rate
for the Federal Funds Rate Interest Determination Date will be
the rate for that day displayed on FFPREBON Index page on
Bloomberg L.P. (Bloomberg), which is the Fed Funds
Opening Rate as reported by Prebon Yamane (or a successor) on
Bloomberg.
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The following procedure will be followed if Federal Funds
Open Rate is the specified Federal Funds Rate in the
applicable pricing supplement or term sheet and such Federal
Funds Rate cannot be determined as described above. The Federal
Funds Rate on such Federal Funds Rate Interest Determination
Date shall be calculated by the calculation agent and will be
the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three
leading brokers of United States dollar federal funds
transactions in New York City (which may include the agents or
their affiliates) selected by the calculation agent prior to
9:00 A.M., New York City time, on such Federal Funds Rate
Interest Determination Date;
provided
,
however
,
that if the brokers so selected by the calculation agent are not
quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination
Date will be the Federal Funds Rate in effect on such Federal
Funds Rate Interest Determination Date.
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If Federal Funds Target Rate is the specified Federal Funds Rate
in the applicable pricing supplement or term sheet, the Federal
Funds Rate as of the applicable Federal Funds Rate Interest
Determination Date shall be the rate on such date as displayed
on the FDTR Index page on Bloomberg. If such rate does not
appear on the FDTR Index page on Bloomberg by 3:00 P.M.,
New York City time, on the calculation date, the Federal Funds
Rate for such Federal Funds Rate Interest Determination Date
will be the rate for that day appearing on Reuters
Page USFFTARGET= (or any other page as may replace such
page on such service) (Reuters
Page USFFTARGET=).
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The following procedure will be followed if Federal Funds
Target Rate is the specified Federal Funds Rate in the
applicable pricing supplement or term sheet and such Federal
Funds Rate cannot be determined as described above. The Federal
Funds Rate on such Federal Funds Rate Interest Determination
Date shall be calculated by the calculation agent and will be
the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three
leading brokers of United States dollar federal funds
transactions in New York City (which may include the agents or
their affiliates) selected by the calculation agent prior to
9:00 A.M., New York City time, on such Federal Funds Rate
Interest Determination Date.
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Prime Rate Notes.
The Prime Rate
for any Interest Determination Date is the rate on that date, as
published in H.15(519) by 3:00 P.M., New York City time, on
the Calculation Date for that Interest Determination Date under
the heading Bank Prime Loan or, if not published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Interest Determination Date as published
in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, under the caption
Bank Prime Loan.
The following procedures will be followed if the Prime Rate
cannot be determined as described above:
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If the rate is not published in H.15(519), H.15 Daily Update or
another recognized electronic source by 3:00 PM., New York
City time, on the Calculation Date, then the calculation agent
will determine the Prime Rate to be the average of the rates of
interest publicly announced by each bank that appears on the
Reuters Screen designated as US PRIME 1 Page as that
banks prime rate or base lending rate in effect as of
11:00 A.M., New York City time on that Interest
Determination Date.
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If fewer than four rates appear on the Reuters Page US
PRIME 1 on the Interest Determination Date, then the Prime Rate
will be the average of the prime rates or base lending rates
quoted (on the basis of the actual number of days in the year
divided by a
360-day
year) as of the close of business on the Interest Determination
Date by three major banks, which may include an agent or its
affiliates, in the City of New York selected by the calculation
agent.
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If the banks selected by the calculation agent are not quoting
as mentioned above, the Prime Rate will remain the Prime Rate
then in effect on the Interest Determination Date.
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Reuters Page US PRIME 1
means the
display on Reuters (or any successor service) on the US
PRIME 1 Page (or such other page as may replace the US
PRIME 1 Page on such service) for the purpose of displaying
prime rates or base lending rates of major United States banks.
Treasury Rate Notes.
The Treasury
Rate for any Interest Determination Date is the rate from
the auction of direct obligations of the United States
(Treasury bills) having the Index Maturity specified
in such pricing supplement or term sheet under the caption
INVEST RATE on the display on Reuters
page USAUCTION10 (or any other page as may replace such
page on such service) or page USAUCTION11 (or any other
page as may replace such page on such service) or, if not so
published at 3:00 P.M., New York City time, on the related
calculation date, the bond equivalent yield (as defined below)
of the rate for such treasury bills as published in H.15 Daily
Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption
U.S. Government Securities/Treasury Bills/Auction
High. If such rate is not so published in the related H.15
Daily Update or another recognized source by 3:00 P.M., New
York City time, on the related calculation date, the Treasury
Rate on such Treasury Rate Interest Determination Date shall be
the bond equivalent yield of the auction rate of such Treasury
bills as announced by the United States Department of the
Treasury. In the event that such auction rate is not so
announced by the United States Department of the Treasury on
such calculation date, or if no such auction is held, then the
Treasury Rate on such Treasury Rate Interest Determination Date
shall be the bond equivalent yield of the rate on such Treasury
Rate Interest Determination Date of Treasury bills having the
Index Maturity specified in the applicable pricing supplement or
term sheet as published in H.15(519) under the caption
U.S. government securities/treasury bills/secondary
market or, if not yet published by 3:00 P.M., New
York City time, on the related calculation date, the rate on
such Treasury Rate Interest Determination Date of such treasury
bills as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying
such rate, under the caption U.S. government
securities/treasury bills (secondary market). If such rate
is not yet published in the H.15(519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York
City time, on the related calculation date, then the Treasury
Rate on such Treasury Rate Interest Determination Date shall be
calculated by the calculation agent and shall be the bond
equivalent yield of the arithmetic mean of the secondary market
bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of the
three leading primary United States government securities
dealers (which may include the agents or their affiliates)
selected by the calculation agent, for the issue of Treasury
bills with a remaining maturity closest to the Index Maturity
specified in the applicable pricing supplement or term sheet;
provided, however
, that if the dealers so selected by the
calculation agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
bond equivalent yield
means a yield
calculated in accordance with the following formula and
expressed as a percentage:
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bond equivalent yield =
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D360
360 − (D
M)
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100
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where D refers to the applicable per annum rate for
Treasury bills quoted on a bank discount basis and expressed as
a decimal, N refers to the number of days in the
year, either 365 or 366, as the case may be, and M
refers to the actual number of days in the interest reset period
for which interest is being calculated.
CMT Rate Notes.
The CMT Rate for
any Interest Determination Date is as follows:
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If Reuters Page FRBCMT is the specified CMT
Reuters Page in the applicable pricing supplement or term sheet,
the CMT Rate on the CMT Rate Interest Determination Date shall
be a percentage equal to the yield for United States Treasury
securities at constant maturity having the Index
Maturity specified in the applicable pricing supplement or term
sheet as set forth in H.15(519) under the caption Treasury
constant maturities, as such yield is displayed on Reuters
(or any successor service) on page FRBCMT (or any other page as
may replace such page on such service) (Reuters Page
FRBCMT) for such CMT Rate Interest Determination Date.
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If such rate does not appear on Reuters Page FRBCMT, the
CMT Rate on such CMT Rate Interest Determination Date shall be a
percentage equal to the yield for United States Treasury
securities at constant
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maturity having the Index Maturity specified in the
applicable pricing supplement or term sheet and for such CMT
Rate Interest Determination Date as set forth in H.15(519) under
the caption Treasury constant maturities.
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If such rate does not appear in H.15(519), the CMT Rate on such
CMT Rate Interest Determination Date shall be the rate for the
period of the Index Maturity specified in the applicable pricing
supplement or term sheet as may then be published by either the
Federal Reserve Board or the United States Department of the
Treasury that the calculation agent determines to be comparable
to the rate that would otherwise have been published in
H.15(519).
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If the Federal Reserve Board or the United States Department of
the Treasury does not publish a yield on United States Treasury
securities at constant maturity having the Index
Maturity specified in the applicable pricing supplement or term
sheet for such CMT Rate Interest Determination Date, the CMT
Rate on such CMT Rate Interest Determination Date shall be
calculated by the calculation agent and shall be a
yield-to-maturity
based on the arithmetic mean of the secondary market bid prices
at approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date of three leading primary United
States government securities dealers in New York City (which may
include the agents or their affiliates) (each, a reference
dealer) selected by the calculation agent from five such
reference dealers selected by the calculation agent and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest) for United States Treasury
securities with an original maturity equal to the Index Maturity
specified in the applicable pricing supplement or term sheet, a
remaining term to maturity no more than one year shorter than
such Index Maturity and in a principal amount that is
representative for a single transaction in such securities in
such market at such time. If fewer than three prices are
provided as requested, the CMT Rate on such CMT Rate Interest
Determination Date shall be calculated by the calculation agent
and shall be a
yield-to-maturity
based on the arithmetic mean of the secondary market bid prices
as of approximately 3:30 P.M., New York City time, on such
CMT Rate Interest Determination Date of three reference dealers
selected by the calculation agent from five such reference
dealers selected by the calculation agent and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest) for United States Treasury securities with an
original maturity greater than the Index Maturity specified in
the applicable pricing supplement or term sheet, a remaining
term to maturity closest to such Index Maturity and in a
principal amount that is representative for a single transaction
in such securities in such market at such time. If two such
United States Treasury securities with an original maturity
greater than the Index Maturity specified in the applicable
pricing supplement or term sheet have remaining terms to
maturity equally close to such Index Maturity, the quotes for
the treasury security with the shorter original term to maturity
will be used. If fewer than five but more than two such prices
are provided as requested, the CMT Rate on such CMT Rate
Interest Determination Date shall be calculated by the
calculation agent and shall be based on the arithmetic mean of
the bid prices obtained and neither the highest nor the lowest
of such quotations shall be eliminated;
provided
,
however
, that if fewer than three such prices are
provided as requested, the CMT Rate determined as of such CMT
Rate Interest Determination Date shall be the CMT Rate in effect
on such CMT Rate Interest Determination Date.
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If Reuters Page FEDCMT is the specified CMT
Reuters Page in the applicable pricing supplement or term sheet,
the CMT Rate on the CMT Rate Interest Determination Date shall
be a percentage equal to the one-week or one-month, as specified
in the applicable pricing supplement or term sheet, average
yield for United States Treasury securities at
constant maturity having the Index Maturity
specified in the applicable pricing supplement or term sheet as
set forth in H.15(519) opposite the caption Treasury
Constant Maturities, as such yield is displayed on Reuters
on page FEDCMT (or any other page as may replace such page
on such service) (Reuters Page FEDCMT) for the
week or month, as applicable, ended immediately preceding the
week or month, as applicable, in which such CMT Rate Interest
Determination Date falls.
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If such rate does not appear on Reuters Page FEDCMT, the
CMT Rate on such CMT Rate Interest Determination Date shall be a
percentage equal to the one-week or one-month, as specified in
the applicable pricing supplement or term sheet, average yield
for United States Treasury securities at constant
maturity
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having the Index Maturity specified in the applicable pricing
supplement or term sheet for the week or month, as applicable,
preceding such CMT Rate Interest Determination Date as set forth
in H.15(519) opposite the caption Treasury Constant
Maturities.
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If such rate does not appear in H.15(519), the CMT Rate on such
CMT Rate Interest Determination Date shall be the one-week or
one-month, as specified in the applicable pricing supplement or
term sheet, average yield for United States Treasury securities
at constant maturity having the Index Maturity
specified in the applicable pricing supplement or term sheet as
otherwise announced by the Federal Reserve Bank of New York
for the week or month, as applicable, ended immediately
preceding the week or month, as applicable, in which such CMT
Rate Interest Determination Date falls.
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If the Federal Reserve Bank of New York does not publish a
one-week or one-month, as specified in the applicable pricing
supplement or term sheet, average yield on United States
Treasury securities at constant maturity having the
Index Maturity specified in the applicable pricing supplement or
term sheet for the applicable week or month, the CMT Rate on
such CMT Rate Interest Determination Date shall be calculated by
the calculation agent and shall be a
yield-to-maturity
based on the arithmetic mean of the secondary market bid prices
at approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date of three reference dealers
selected by the calculation agent from five such reference
dealers selected by the calculation agent and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest) for United States Treasury securities with an
original maturity equal to the Index Maturity specified in the
applicable pricing supplement or term sheet, a remaining term to
maturity of no more than one year shorter than such Index
Maturity and in a principal amount that is representative for a
single transaction in such securities in such market at such
time. If fewer than five but more than two such prices are
provided as requested, the CMT Rate on such CMT Rate Interest
Determination Date shall be the rate on the CMT Rate Interest
Determination Date calculated by the calculation agent based on
the arithmetic mean of the bid prices obtained and neither the
highest nor the lowest of such quotation shall be eliminated. If
fewer than three prices are provided as requested, the CMT Rate
on such CMT Rate Interest Determination Date shall be calculated
by the calculation agent and shall be a
yield-to-maturity
based on the arithmetic mean of the secondary market bid prices
as of approximately 3:30 P.M., New York City time, on such
CMT Rate Interest Determination Date of three reference dealers
selected by the calculation agent from five such reference
dealers selected by the calculation agent and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest) for United States Treasury securities with an
original maturity longer than the Index Maturity specified in
the applicable pricing supplement or term sheet, a remaining
term to maturity closest to such Index Maturity and in a
principal amount that is representative for a single transaction
in such securities in such market at such time. If two United
States Treasury securities with an original maturity greater
than the Index Maturity specified in the applicable pricing
supplement or term sheet have remaining terms to maturity
equally close to such Index Maturity, the quotes for the
Treasury security with the shorter original term to maturity
will be used. If fewer than five but more than two such prices
are provided as requested, the CMT Rate on such CMT Rate
Interest Determination Date shall be the rate on the CMT Rate
Interest Determination Date calculated by the calculation agent
based on the arithmetic mean of the bid prices obtained and
neither the highest nor lowest of such quotations shall be
eliminated;
provided
,
however
, that if fewer than
three such prices are provided as requested, the CMT Rate
determined as of such CMT Rate Determination Date shall be the
CMT Rate in effect on such CMT Rate Interest Determination Date.
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Eleventh District Cost of Funds Rate
Notes.
The Eleventh District Cost of Funds
Rate for any Interest Determination Date is the rate equal
to the monthly weighted average cost of funds for the calendar
month preceding the Interest Determination Date as displayed on
Reuters Page COFI/ARMS (or any other page as may replace
that specified page on that service) as of 11:00 A.M.,
San Francisco time, on the Calculation Date for that
Interest Determination Date under the caption
11th District.
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The following procedures will be used if the Eleventh District
Cost of Funds Rate cannot be determined as described above:
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If the rate is not displayed on the relevant page as of
11:00 A.M., San Francisco time, on the Calculation
Date, then the Eleventh District Cost of Funds Rate will be the
monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District, as
announced by the Federal Home Loan Bank of San Francisco,
as the cost of funds for the calendar month preceding the date
of announcement.
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If no announcement was made relating to the calendar month
preceding the Interest Determination Date, the Eleventh District
Cost of Funds Rate will remain the Eleventh District Cost of
Funds Rate then in effect on the Interest Determination Date.
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Indexed
Notes
We may issue debt securities for which the amount of interest or
principal that you will receive will not be known on your date
of purchase. Interest or principal payments for these types of
debt securities, which we call Indexed Notes, are
determined by reference to securities, financial or
non-financial indices, currencies, commodities, interest rates,
or a composite or baskets of any or all of the above. Examples
of indexed items that may be used include a published stock
index, the common stock price of a publicly traded company, the
value of the U.S. dollar versus the Japanese yen, or the
price of a barrel of West Texas intermediate crude oil.
If you purchase an Indexed Note, you may receive a principal
amount at maturity that is greater than or less than the
Notes face amount, and an interest rate that is greater
than or less than the interest rate that you would have earned
if you had instead purchased a conventional debt security issued
by us at the same time with the same maturity. The amount of
interest and principal that you will receive will depend on the
structure of the Indexed Note and the level of the specified
indexed item throughout the term of the Indexed Note and at
maturity. Specific information pertaining to the method of
determining the interest payments and the principal amount will
be described in the prospectus supplement or term sheet, as well
as additional risk factors unique to the Indexed Note, certain
historical information for the specified indexed item and
certain additional United States federal tax considerations.
Renewable
Notes
We may issue Renewable Notes (Renewable Notes) which
are debt securities that will automatically renew at their
stated maturity date unless the holder of a Renewable Note
elects to terminate the automatic extension feature by giving
notice in the manner described in the related prospectus
supplement or term sheet.
The holder of a Renewable Note must give notice of termination
at least 15 but not more than 30 days prior to a Renewal
Date. The holder of a Renewable Note may terminate the automatic
extension for less than all of its Renewable Notes only if the
terms of the Renewable Note specifically permit partial
termination. An election to terminate the automatic extension of
any portion of the Renewable Note is not revocable and will be
binding on the holder of the Renewable Note. If the holder
elects to terminate the automatic extension of the maturity of
the Note, the holder will become entitled to the principal and
interest accrued up to the Renewal Date. The related prospectus
supplement or term sheet will identify a stated maturity date
beyond which the Maturity Date cannot be renewed.
If a Renewable Note is represented by a Global Security, DTC or
its nominee will be the holder of the Note and therefore will be
the only entity that can exercise a right to terminate the
automatic extension of a Note. In order to ensure that DTC or
its nominee will exercise a right to terminate the automatic
extension provisions of a particular Renewable Note, the
beneficial owner of the Note must instruct the broker or other
DTC participant through which it holds an interest in the Note
to notify DTC of its desire to terminate the automatic extension
of the Note. Different firms have different cut-off times for
accepting instructions from their customers and, accordingly,
each beneficial owner should consult the broker or other
participant through which it holds an interest in a Note to
ascertain the cut-off time by which an instruction must be given
for delivery of timely notice to DTC or its nominee.
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Extendible
Notes
We may issue Notes whose stated Maturity Date may be extended at
our option (an Extendible Note) for one or more
whole-year periods (each, an Extension Period), up
to but not beyond a stated maturity date described in the
related prospectus supplement or term sheet (but not to exceed
30 years from the date of issue).
We may exercise our option to extend the Extendible Note by
notifying the applicable trustee (or any duly appointed paying
agent) at least 45 but not more than 60 days prior to the
then effective Maturity Date. If we elect to extend the
Extendible Note, the trustee (or paying agent) will mail (at
least 40 days prior to the Maturity Date) to the registered
holder of the Extendible Note a notice (an Extension
Notice) informing the holder of our election, the new
Maturity Date and any updated terms. Upon the mailing of the
Extension Notice, the maturity of that Extendible Note will be
extended automatically as set forth in the Extension Notice.
However, we may, not later than 20 days prior to the
Maturity Date of an Extendible Note (or, if that date is not a
Business Day, prior to the next Business Day), at our option,
establish a higher interest rate, in the case of a Fixed Rate
Note, or a higher spread
and/or
spread multiplier, in the case of a Floating Rate Note, for the
Extension Period by mailing or causing the applicable trustee
(or paying agent) to mail notice of such higher interest rate or
higher spread
and/or
spread multiplier to the holder of the Note. The notice will be
irrevocable.
If we elect to extend the maturity of an Extendible Note, the
holder of the Note will have the option to instead elect
repayment of the Note by us on the then effective Maturity Date.
In order for an Extendible Note to be so repaid on the Maturity
Date, we must receive, at least 15 days but not more than
30 days prior to the Maturity Date:
(1) the Extendible Note with the form Option to Elect
Repayment on the reverse of the Note duly
completed; or
(2) a facsimile transmission, telex or letter from a member
of a national securities exchange or the Financial Industry
Regulatory Authority (the FINRA) or a commercial
bank or trust company in the United States setting forth the
name of the holder of the Extendible Note, the principal amount
of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of
the Note, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Note be repaid,
together with the duly completed form entitled Option to
Elect Repayment on the reverse of the Note, will be
received by the applicable trustee (or paying agent) not later
than the fifth Business Day after the date of the facsimile
transmission, telex or letter;
provided
,
however
;
that the facsimile transmission, telex or letter will only be
effective if the Note and form duly completed are received by
the applicable trustee (or paying agent) by that fifth Business
Day. The option may be exercised by the holder of an Extendible
Note for less than the aggregate principal amount of the Note
then outstanding if the principal amount of the Note remaining
outstanding after repayment is an authorized denomination.
If an Extendible Note is represented by a Global Security, DTC
or its nominee will be the holder of that Note and therefore
will be the only entity that can exercise a right to repayment.
To ensure that DTC or its nominee timely exercises a right to
repayment with respect to a particular Extendible Note, the
beneficial owner of that Note must instruct the broker or other
participant through which it holds an interest in the Note to
notify DTC of its desire to exercise a right of repayment.
Different firms have different cut-off times for accepting
instructions from their customers and, accordingly, each
beneficial owner should consult the broker or other participant
through which it holds an interest in an Extendible Note to
determine the cut-off time by which an instruction must be given
for timely notice to be delivered to DTC or its nominee.
Global
Securities
What Is a Global Security?
As noted above, we usually
will issue debt securities as registered securities in
book-entry form only. A global security represents one or any
other number of individual debt securities. Generally, all debt
securities represented by the same global securities will have
the same terms.
Each debt security issued in book-entry form will be represented
by a global security that we deposit with and register in the
name of a financial institution or its nominee that we select.
The financial institution that we select for this purpose is
called the depositary. Unless we specify otherwise in the
applicable prospectus supplement or term
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sheet, The Depository Trust Company, New York, New York,
known as DTC, will be the depositary for all debt securities
issued in book-entry form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary or its nominee, unless
special termination situations arise. We describe those
situations below under Special Situations when a Global
Security Will Be Terminated. As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all debt securities represented
by a global security, and investors will be permitted to own
only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker,
bank or other financial institution that in turn has an account
with the depositary or with another institution that has an
account with the depositary. Thus, an investor whose security is
represented by a global security will not be a holder of the
debt security, but only an indirect holder of a beneficial
interest in the global security.
Special Considerations for Global
Securities.
As an indirect holder, an
investors rights relating to a global security will be
governed by the account rules of the investors financial
institution and of the depositary, as well as general laws
relating to securities transfers. The depositary that holds the
global security will be considered the holder of the debt
securities represented by the global security.
If debt securities are issued only in the form of a global
security, an investor should be aware of the following:
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An investor cannot cause the debt securities to be registered in
his or her name, and cannot obtain certificates for his or her
interest in the debt securities, except in the special
situations we describe below.
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An investor will be an indirect holder and must look to his or
her own bank or broker for payments on the debt securities and
protection of his or her legal rights relating to the debt
securities, as we describe under Issuance of Securities in
Registered Form above.
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An investor may not be able to sell interests in the debt
securities to some insurance companies and other institutions
that are required by law to own their securities in
non-book-entry form.
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An investor may not be able to pledge his or her interest in a
global security in circumstances where certificates representing
the debt securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective.
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The depositarys policies, which may change from time to
time, will govern payments, transfers, exchanges and other
matters relating to an investors interest in a global
security. We and the trustee have no responsibility for any
aspect of the depositarys actions or for its records of
ownership interests in a global security. We and the trustee
also do not supervise the depositary in any way.
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If we redeem less than all the debt securities of a particular
series being redeemed, DTCs practice is to determine by
lot the amount to be redeemed from each of its participants
holding that series.
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An investor is required to give notice of exercise of any option
to elect repayment of its debt securities, through its
participant, to the applicable trustee and to deliver the
related debt securities by causing its participant to transfer
its interest in those debt securities, on DTCs records, to
the applicable trustee.
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DTC requires that those who purchase and sell interests in a
global security deposited in its book-entry system use
immediately available funds. Your broker or bank may also
require you to use immediately available funds when purchasing
or selling interests in a global security.
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Financial institutions that participate in the depositarys
book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies
affecting payments, notices and other matters relating to the
debt securities. There may be more than one financial
intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of
those intermediaries.
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Special Situations When a Global Security Will Be
Terminated.
In a few special situations described
below, a global security will be terminated and interests in it
will be exchanged for certificates in non-book-entry form
(certificated securities). After that exchange, the choice of
whether to hold the certificated debt securities directly or
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in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in a global security transferred on termination to
their own names, so that they will be holders. We have described
the rights of holders and street name investors under
Holders of Registered Debt Securities above.
The special situations for termination of a global security are
as follows:
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if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global
security, and we do not appoint another institution to act as
depositary within 60 days,
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if we notify the trustee that we wish to terminate that global
security, or
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if an event of default has occurred with regard to the debt
securities represented by that global security and has not been
cured or waived; we discuss defaults later under Events of
Default.
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The prospectus supplement or term sheet may list situations for
terminating a global security that would apply only to the
particular series of debt securities covered by the prospectus
supplement or term sheet. If a global security is terminated,
only the depositary, and not we or the applicable trustee, is
responsible for deciding the names of the institutions in whose
names the debt securities represented by the global security
will be registered and, therefore, who will be the holders of
those debt securities.
Payment
and Paying Agents
We will pay interest to the person listed in the trustees
records as the owner of the debt security at the close of
business on a particular day in advance of each due date for
interest, even if that person no longer owns the debt security
on the interest due date. That day, usually about two weeks in
advance of the interest due date, is called the record
date. Because we will pay all the interest for an interest
period to the holders on the record date, holders buying and
selling debt securities must work out between themselves the
appropriate purchase price. The most common manner is to adjust
the sales price of the debt securities to prorate interest
fairly between buyer and seller based on their respective
ownership periods within the particular interest period. This
prorated interest amount is called accrued interest.
Payments on Global Securities.
We will make
payments on a global security in accordance with the applicable
policies of the depositary as in effect from time to time. Under
those policies, we will make payments directly to the
depositary, or its nominee, and not to any indirect holders who
own beneficial interests in the global security. An indirect
holders right to those payments will be governed by the
rules and practices of the depositary and its participants, as
described under What Is a Global Security?.
Payments on Certificated Securities.
We will
make payments on a certificated debt security as follows. We
will pay interest that is due on an interest payment date by
check mailed on the interest payment date to the holder at his
or her address shown on the trustees records as of the
close of business on the regular record date. We will make all
payments of principal and premium, if any, by check at the
office of the applicable trustee in New York, New York
and/or
at
other offices that may be specified in the prospectus supplement
or term sheet or in a notice to holders, against surrender of
the debt security.
Alternatively, if the holder asks us to do so, we will pay any
amount that becomes due on the debt security by wire transfer of
immediately available funds to an account at a bank in New York
City, on the due date. To request payment by wire, the holder
must give the applicable trustee or other paying agent
appropriate transfer instructions at least 15 Business Days
before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the
instructions must be given by the person who is the holder on
the relevant regular record date. Any wire instructions, once
properly given, will remain in effect unless and until new
instructions are given in the manner described above.
Payment When Offices Are Closed.
If any
payment is due on a debt security on a day that is not a
Business Day, we will make the payment on the next day that is a
Business Day. Payments made on the next Business Day in this
situation will be treated under the Indenture as if they were
made on the original due date, except as otherwise indicated in
the attached prospectus supplement or term sheet. Such payment
will not result in a default under any debt security or the
Indenture, and no interest will accrue on the payment amount
from the original due date to the next day that is a Business
Day.
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Material
Covenants
Consolidation, Merger, Sale or Conveyance.
The
Indenture provides that AAM Inc. or Holdings may not consolidate
with or merge into any other entity or convey, transfer or lease
their properties and assets substantially as an entirety to any
entity, unless:
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the successor or transferee entity, if other than AAM Inc. or
Holdings, as the case may be, is a corporation organized and
existing under the laws of the United States, any state thereof
or the District of Columbia and expressly assumes by a
supplemental indenture executed and delivered to the trustee, in
form reasonably satisfactory to the trustee, the due and
punctual payment of the principal of, any premium on and any
interest on, all the outstanding debt securities and the
performance of every covenant and obligation in the Indenture to
be performed or observed by AAM Inc. or Holdings, as the case
may be;
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immediately after giving effect to the transaction, no Event of
Default, as defined in the Indenture, and no event which, after
notice or lapse of time or both, would become an Event of
Default, has happened and is continuing; and
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AAM Inc. or Holdings, as the case may be, has delivered to the
trustee an officers certificate and an opinion of counsel,
each in the form required by the Indenture and 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 the
foregoing provisions relating to such transaction.
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In case of any such consolidation, merger, conveyance or
transfer, the successor entity will succeed to and be
substituted for AAM Inc. or Holdings, as the case may be, as
obligor or guarantor on the debt securities, as the case may be,
with the same effect as if it had been named in the Indenture as
AAM Inc. or Holdings, as the case may be.
Limitation on Liens.
AAM Inc. and Holdings
will not, and will not permit any Restricted Subsidiary to,
create, incur, issue, assume or guarantee any indebtedness for
money borrowed (Debt) secured by a Mortgage upon any
Operating Property, or upon shares of capital stock or Debt
issued by any Restricted Subsidiary and owned by AAM Inc. or
Holdings or any Restricted Subsidiary, whether owned at the date
of the Indenture or thereafter acquired, without effectively
providing concurrently that the debt securities of each series
then outstanding under the Indenture are secured equally and
ratably with or, at our option, prior to such Debt so long as
such Debt shall be so secured.
The foregoing restriction shall not apply to, and there shall be
excluded from Debt in any computation under such restriction,
Debt secured by:
(1) Mortgages on any property existing at the time of the
acquisition thereof;
(2) Mortgages on property of a corporation existing at the
time such corporation is merged into or consolidated with our
company or Holdings or a Restricted Subsidiary or at the time of
a sale, lease or other disposition of the properties of such
corporation (or a division thereof) as an entirety or
substantially as an entirety to us, Holdings or a Restricted
Subsidiary,
provided
that any such Mortgage does not
extend to any property owned by us, Holdings or any Restricted
Subsidiary immediately prior to such merger, consolidation,
sale, lease or disposition;
(3) Mortgages on property of a corporation existing at the
time such corporation becomes a Restricted Subsidiary;
(4) Mortgages in favor of our company, Holdings or a
Restricted Subsidiary;
(5) Mortgages to secure all or part of the cost of
acquisition, construction, development or improvement of the
underlying property, or to secure debt incurred to provide funds
for any such purpose,
provided
that the commitment of the
creditor to extend the credit secured by any such Mortgage shall
have been obtained no later than 360 days after the later
of (a) the completion of the acquisition, construction,
development or improvement of such property or (b) the
placing in operation of such property;
(6) Mortgages in favor of the United States of America or
any State thereof, or any department, agency or instrumentality
or political subdivision thereof, to secure partial, progress,
advance or other payments; and
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(7) Mortgages existing on the date of the Indenture or any
extension, renewal, replacement or refunding of any Debt secured
by a Mortgage existing on the date of the Indenture or referred
to in clauses (1) to (3) or (5),
provided
that
any such extension, renewal, replacement or refunding of such
Debt shall be created within 360 days of repaying the Debt
secured by the Mortgage referred to in clauses (1) to
(3) or (5) and the principal amount of the Debt
secured thereby and not otherwise authorized by clauses (1)
to (3) or (5) shall not exceed the principal amount of
Debt, plus any premium or fee payable in connection with any
such extension, renewal, replacement or refunding, so secured at
the time of such extension, renewal, replacement or refunding.
Notwithstanding the restrictions described above, AAM Inc.,
Holdings and any Restricted Subsidiaries may create, incur,
issue, assume or guarantee Debt secured by Mortgages without
equally and ratably securing the debt securities of each series
then outstanding if, at the time of such creation, incurrence,
issuance, assumption or guarantee, after giving effect thereto
and to the retirement of any Debt which is concurrently being
retired, the aggregate amount of all such Debt secured by
Mortgages which would otherwise be subject to such restrictions
(other than any Debt secured by Mortgages permitted as described
in clauses (1) through (7) of the immediately
preceding paragraph) plus all Attributable Debt of AAM Inc.,
Holdings and the Restricted Subsidiaries in respect of Sale and
Leaseback Transactions with respect to Operating Properties
(with the exception of such transactions which are permitted
under clauses (1) through (4) of the first sentence of
the first paragraph under Limitation on Sale
and Leaseback Transactions below) does not exceed 10% of
Consolidated Net Tangible Assets.
Consolidated Tangible Assets
means the
aggregate of all assets of Holdings (including the value of all
existing Sale and Leaseback Transactions and any assets
resulting from the capitalization of other long-term lease
obligations in accordance with GAAP) appearing on the most
recent available consolidated balance sheet of Holdings at their
net book values, after deducting related depreciation,
applicable allowances and other properly deductible items, and
after deducting all goodwill, trademarks, tradenames, patents,
unamortized debt discount and expenses and other like
intangibles, all prepared in accordance with GAAP.
Consolidated Current Liabilities
means the
aggregate of the current liabilities of Holdings appearing on
the most recent available consolidated balance sheet of
Holdings, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of
Holdings or its Subsidiaries issued under a revolving credit or
similar agreement if the obligation issued under such agreement
matures by its terms within 12 months from the date thereof
but by the terms of such agreement such obligation may be
renewed or extended or the amount thereof reborrowed or refunded
at the option of Holdings, our company or any Subsidiary for a
term in excess of 12 months from the date of determination.
Consolidated Net Tangible Assets
means
Consolidated Tangible Assets after deduction of Consolidated
Current Liabilities.
GAAP
means generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a
significant segment of the accounting profession which are in
effect on the Issue Date.
Mortgage
means, with respect to any property
or assets, any mortgage or deed of trust, pledge, hypothecation,
assignment, security interest, lien, encumbrance, or any other
security arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including any conditional
sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
Operating Property
means any real property or
equipment located in the United States owned by, or leased to,
AAM Inc., Holdings or any Subsidiary that has a market value in
excess of 1.0% of Consolidated Net Tangible Assets.
Person
means any individual, corporation,
partnership, joint venture, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Restricted Subsidiary
means any Subsidiary
(excluding AAM Inc.) that owns Operating Property.
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Sale and Leaseback Transaction
means any
arrangement with any Person providing for the leasing to AAM
Inc., Holdings or any Subsidiary of any Operating Property,
which Operating Property has been or is to be sold or
transferred by AAM Inc., Holdings or such Subsidiary to such
Person.
Subsidiary
means any corporation of which at
least a majority of the outstanding stock having by the terms
thereof ordinary voting power for the election of directors of
such corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by
AAM Inc. or Holdings, or by one or more other Subsidiaries, or
by AAM Inc. or Holdings and one or more other Subsidiaries.
Limitation on Sale and Leaseback
Transactions.
AAM Inc. and Holdings will not, and
will not permit any Restricted Subsidiary to, enter into any
Sale and Leaseback Transaction with respect to any Operating
Property unless:
(1) the Sale and Leaseback Transaction is solely with our
company, Holdings or another Restricted Subsidiary;
(2) the lease is for a period not in excess of twenty-four
months, including renewals;
(3) our company, Holdings or such Restricted Subsidiary
would (at the time of entering into such arrangement) be
entitled as described in clauses (1) through (7) of
the second paragraph under the heading
Limitation on Liens, without equally and
ratably securing the debt securities then outstanding under the
Indenture, to create, incur, issue, assume or guarantee Debt
secured by a Mortgage on such Operating Property in the amount
of the Attributable Debt arising from such Sale and Leaseback
Transaction;
(4) our company, Holdings or such Restricted Subsidiary
within 360 days after the sale of such Operating Property
in connection with such Sale and Leaseback Transaction is
completed, applies an amount equal to the greater of
(A) the net proceeds of the sale of such Operating Property
or (B) the fair market value of such Operating Property to
(i) the retirement of debt securities, other Funded Debt of
our company or Holdings ranking on a parity with the debt
securities or Funded Debt of a Restricted Subsidiary or
(ii) the purchase of Operating Property; or
(5) the Attributable Debt of our company, Holdings and our
Restricted Subsidiaries in respect of such Sale and Leaseback
Transaction and all other Sale and Leaseback Transactions
entered into after the date of the Indenture (other than any
such Sale and Leaseback Transaction as would be permitted as
described in clauses (1) through (4) of this
sentence), plus the aggregate principal amount of Debt secured
by Mortgages on Operating Properties then outstanding (not
including any such Debt secured by Mortgages described in
clauses (1) through (7) of the second paragraph under
the heading Limitation on Liens) which
do not equally and ratably secure such outstanding debt
securities (or secure such outstanding debt securities on a
basis that is prior to other Debt secured thereby), would not
exceed 10% of Consolidated Tangible Net Assets.
Attributable Debt
in respect of any Sale and
Leaseback Transaction, means, as of the time of determination,
the total obligation (discounted to present value at the rate
per annum equal to the discount rate which would be applicable
to a capital lease obligation with like term in accordance with
GAAP) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes, maintenance,
repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining
portion of the initial term of the lease included in such Sale
and Leaseback Transaction.
Funded Debt
means all Debt having a maturity
of more than 12 months from the date as of which the
determination is made or having a maturity of 12 months or
less but by its terms being renewable or extendable beyond
12 months from such date at the option of the borrower, but
excluding any such Debt owed to our company, Holdings or a
Subsidiary.
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Events of
Default
An event of default is defined in the Indenture as:
(a) default for 30 days in payment of any interest on
the debt securities (including additional interest under the
registration rights agreement described below) when it becomes
due and payable;
(b) default in payment of principal of or any premium on
the debt securities at maturity or redemption price when the
same becomes due and payable;
(c) default by us or Holdings in the performance of any
other covenant contained in the Indenture for the benefit of the
debt securities that has not been remedied by the end of a
period of 60 days after notice is given as specified in the
Indenture;
(d) the guarantee of Holdings ceases to be in full force
and effect or is declared null and void or Holdings denies that
it has any further liability under its guarantee to the note
holders, or has given notice to such effect (other than by
reason of the termination of the Indenture or the release of
such guarantee in accordance with the Indenture), and such
condition shall have continued for a period of 30 days
after notice is given as specified in the Indenture;
(e) default in the payment of principal when due or
resulting in acceleration of other indebtedness of AAM Inc.,
Holdings or any Significant Subsidiary for borrowed money where
the aggregate principal amount with respect to which the default
or acceleration has occurred exceeds $50 million and such
acceleration has not been rescinded or annulled or such
indebtedness repaid within a period of 30 days after
written notice to us by the trustee or to us and the trustee by
the holders of at least 25% in principal amount at maturity of
the debt securities,
provided
that if any such default is
cured, waived, rescinded or annulled, then the event of default
by reason thereof would be deemed not to have occurred; and
(f) certain events of bankruptcy, insolvency and
reorganization of our company or Holdings.
When we refer to a Significant Subsidiary, we mean
any Subsidiary that would constitute a significant
subsidiary within the meaning of Article 1 of
Regulation S-X
of the Securities Act as in effect on the date of the Indenture.
The Indenture provides that:
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if an event of default described in clause (a), (b), (c),
(d) or (e) above has occurred and is continuing,
either the trustee or the holders of not less than 25% in
aggregate principal amount of the debt securities may declare
the principal amount of the debt securities then outstanding,
and any accrued and unpaid interest through the date of such
declaration, to be due and payable immediately;
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upon certain conditions such declarations may be annulled and
past defaults (except for defaults in the payment of principal
of, any premium on or interest on, the debt securities and in
compliance with certain covenants) may be waived by the holders
of a majority in aggregate principal amount of the debt
securities then outstanding; and
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if an event of default described in clause (f) occurs and
is continuing, then the principal amount of all debt securities
issued under the Indenture and then outstanding, together with
any accrued interest through the
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occurrence of such event, shall become and be due and payable
immediately, without any declaration or other act by the trustee
or any other holder.
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Under the Indenture, the trustee must give to the holders of
debt securities notice of all uncured defaults known to it with
respect to the debt securities within 90 days after such a
default occurs (the term default to include the events specified
above without notice or grace periods);
provided
that,
except in the case of default in the payments of principal of,
any premium on, any of the debt securities, the trustee will be
protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the
interests of the holders of the debt securities.
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No holder of any debt securities may institute any action under
the Indenture unless:
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such holder has given the trustee written notice of a continuing
event of default with respect to the debt securities;
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the holders of not less than 25% in aggregate principal amount
of the debt securities then outstanding have requested the
trustee to institute proceedings in respect of such event of
default;
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such holder or holders have offered the trustee such reasonable
indemnity as the trustee may require;
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the trustee has failed to institute an action for 60 days
thereafter; and
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no inconsistent direction has been given to the trustee during
such
60-day
period by the holders of a majority in aggregate principal
amount of debt securities.
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The holders of a majority in aggregate principal amount of the
debt securities affected and then outstanding will have the
right, subject to certain limitations, 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 debt securities.
The Indenture provides that, if an event of default occurs and
is continuing, the trustee, in exercising its rights and powers
under the Indenture, will be required to use the degree of care
of a prudent man in the conduct of his own affairs. The
Indenture further provides that the trustee shall not be
required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
under the Indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is reasonably assured to it.
We must furnish to the trustee within 120 days after the
end of each fiscal year a statement of our company signed by one
of the officers of our company to the effect that a review of
our activities during such year and our performance under the
Indenture and the terms of the debt securities has been made,
and, to the knowledge of the signatories based on such review,
we have complied with all conditions and covenants of the
Indenture or, if we are in default, specifying such default.
Modification
of the Indenture
We, the trustee and, if applicable, Holdings and any Subsidiary
Guarantors, may, without the consent of the holders of the debt
securities issued under the Indenture, enter into supplemental
indenture for, among others, one or more of the following
purposes:
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to evidence the succession of another corporation to our
company, and the assumption by such successor of our obligations
under the Indenture and the debt securities;
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to add covenants of our company, or surrender any rights of the
company, or add any rights for the benefit of the holders of
debt securities;
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to cure any ambiguity, omission, defect or inconsistency in such
Indenture;
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to add any guarantors with respect to the securities of any
series;
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to establish the form or terms of any other series of debt
securities, including the form or terms of any Subsidiary
Guarantors guarantee of the securities
and/or
the
provisions and procedures relating to securities convertible
into or exchangeable for any securities of any Person, including
the Company or Holdings;
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to evidence and provide the acceptance of any successor trustee
with respect to the debt securities or one or more other series
of debt securities or to facilitate the administration of the
trusts thereunder by one or more trustees in accordance with
such Indenture; and
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to provide any additional events of default.
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With certain exceptions, the Indenture, the Holdings guarantee,
any Subsidiary guarantee or the rights of the holders of the
debt securities may be modified by us and the trustee with the
consent of the holders of a majority in
29
aggregate principal amount of the debt securities then
outstanding, but no such modification may be made without the
consent of the holder of each outstanding debt security affected
thereby that would:
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change the maturity of any payment of principal of, or any
premium on, any debt securities, or change any place of payment
where, or the coin or currency in which, any debt security or
any premium is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity
thereof (or, in the case of redemption, on or after the
redemption date);
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reduce the percentage in principal amount of the outstanding
debt securities, the consent of whose holders is required for
any such modification, or the consent of whose holders is
required for any waiver of compliance with certain provisions of
the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; or
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modify any of the provisions of certain sections of the
Indenture, including the provisions summarized in this
paragraph, except to increase any such percentage or to provide
that certain other provisions of the Indenture cannot be
modified or waived without the consent of the holder of each
outstanding debt securities affected thereby.
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Defeasance
The following provisions will be applicable to each series of
debt securities unless we state in the applicable prospectus
supplement or term sheet that the provisions of covenant
defeasance and full defeasance will not be applicable to that
series.
Covenant Defeasance.
Under current United
States federal tax law, we can make the deposit described below
and be released from some of the restrictive covenants in the
Indenture under which the particular series was issued. This is
called covenant defeasance. In that event, you would
lose the protection of those restrictive covenants but would
gain the protection of having money and government securities
set aside in trust to repay your debt securities. If you hold
subordinated securities, you also would be released from the
subordination provisions described under Subordinated
Indenture Provisions Subordination below. In
order to achieve covenant defeasance, we must do the following:
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If the debt securities of the particular series are denominated
in U.S. dollars, deposit in trust for the benefit of all
holders of such debt securities a combination of money and
United States government or United States government agency debt
securities or bonds that will generate enough cash to make
interest, principal and any other payments on the debt
securities on their various due dates.
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Deliver to the trustee a legal opinion of our counsel confirming
that, under current United States federal income tax law, we may
make the above deposit without causing you to be taxed on the
debt securities any differently than if we did not make the
deposit and just repaid the debt securities ourselves at
maturity.
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Deliver to the trustee a legal opinion of our counsel stating
that the above deposit does not require registration by us under
the Investment Company Act of 1940, as amended, and a legal
opinion and officers certificate stating that all
conditions precedent to covenant defeasance have been complied
with.
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If we accomplish covenant defeasance, you can still look to us
for repayment of the debt securities if there were a shortfall
in the trust deposit or the trustee is prevented from making
payment. In fact, if one of the remaining Events of Default
occurred (such as our bankruptcy) and the debt securities became
immediately due and payable, there might be a shortfall.
Depending on the event causing the default, you may not be able
to obtain payment of the shortfall.
Full Defeasance.
If there is a change in
United States federal tax law, as described below, we can
legally release ourselves from all payment and other obligations
on the debt securities of a particular series (called full
defeasance) if we put in place the following other
arrangements for you to be repaid:
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If the debt securities of the particular series are denominated
in U.S. dollars, we must deposit in trust for the benefit
of all holders of such debt securities a combination of money
and United States government or
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United States government agency debt securities or bonds that
will generate enough cash to make interest, principal and any
other payments on the debt securities on their various due dates.
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We must deliver to the trustee a legal opinion confirming that
there has been a change in current United States federal tax law
or an Internal Revenue Service ruling that allows us to make the
above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit
and just repaid the debt securities ourselves at maturity. Under
current United States federal tax law, the deposit and our legal
release from the debt securities would be treated as though we
paid you your share of the cash and debt securities or bonds at
the time the cash and debt securities or bonds were deposited in
trust in exchange for your debt securities and you would
recognize gain or loss on the debt securities at the time of the
deposit.
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We must deliver to the trustee a legal opinion of our counsel
stating that the above deposit does not require registration by
us under the Investment Company Act of 1940, as amended, and a
legal opinion and officers certificate stating that all
conditions precedent to defeasance have been complied with.
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If we ever did accomplish full defeasance, as described above,
you would have to rely solely on the trust deposit for repayment
of the debt securities. You could not look to us for repayment
in the unlikely event of any shortfall. Conversely, the trust
deposit would most likely be protected from claims of our
lenders and other creditors if we ever became bankrupt or
insolvent. If you hold subordinated securities, you would also
be released from the subordination provisions described later
under Subordinated Indenture
Provisions Subordination.
Discharge
of the Indenture
We may satisfy and discharge our obligations under the Indenture
by delivering to the trustee for cancellation all outstanding
debt securities or by depositing with the trustee or the paying
agent after the debt securities have become due and payable,
whether at stated maturity, or any redemption date, or
otherwise, cash sufficient to pay all of the outstanding debt
securities and paying all other sums payable under the Indenture
by our company.
Form,
Exchange and Transfer of Certificated Registered
Securities
If registered debt securities cease to be issued in book-entry
form, they will be issued:
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only in fully registered certificated form,
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without interest coupons, and
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unless we indicate otherwise in the prospectus supplement or
term sheet, in denominations of $1,000 and amounts that are
multiples of $1,000.
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Holders may exchange their certificated securities for debt
securities of smaller denominations or combined into fewer debt
securities of larger denominations, as long as the total
principal amount is not changed.
Holders may exchange or transfer their certificated securities
at the office of their trustee. We have appointed the trustee to
act as our agent for registering debt securities in the names of
holders transferring debt securities. We may appoint another
entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer
or exchange their certificated securities, but they may be
required to pay any tax or other governmental charge associated
with the transfer or exchange. The transfer or exchange will be
made only if our transfer agent is satisfied with the
holders proof of legal ownership.
If we have designated additional transfer agents for your debt
security, they will be named in your prospectus supplement or
term sheet. We may appoint additional transfer agents or cancel
the appointment of any particular transfer agent. We may also
approve a change in the office through which any transfer agent
acts.
If any certificated securities of a particular series are
redeemable and we redeem less than all the debt securities of
that series, we may block the transfer or exchange of those debt
securities during the period beginning 15 days before the
day we mail the notice of redemption and ending on the day of
that mailing, in order to freeze the list of holders to prepare
the mailing. We may also refuse to register transfers or
exchanges of any certificated securities
31
selected for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any debt
security that will be partially redeemed.
If a registered debt security is issued in book-entry form, only
the depositary will be entitled to transfer and exchange the
debt security as described in this subsection, since it will be
the sole holder of the debt security.
Resignation
of Trustee
The trustee may resign or be removed with respect to one or more
series of indenture securities
provided
that a successor
trustee is appointed to act with respect to these series. In the
event that two or more persons are acting as trustee with
respect to different series of indenture securities under the
Indenture, each of the trustees will be a trustee of a trust
separate and apart from the trust administered by any other
trustee.
The
Trustee Under the Indenture
U.S. Bank National Association is one of a number of banks
with which we maintain ordinary banking relationships and from
which we may have obtained credit facilities and lines of credit.
Certain
Considerations Relating to Foreign Currencies
Debt securities denominated or payable in foreign currencies may
entail significant risks. These risks include the possibility of
significant fluctuations in the foreign currency markets, the
imposition or modification of foreign exchange controls and
potential illiquidity in the secondary market. These risks will
vary depending upon the currency or currencies involved and will
be more fully described in the applicable prospectus supplement
or term sheet.
DESCRIPTION
OF GUARANTEES
The
Guarantees
This section summarizes some of the terms of the guarantees by
Holdings and/or any relevant Subsidiary Guarantor. Most of the
financial terms and other specific material terms of any
guarantees that we offer will be described in a prospectus
supplement or term sheet to be attached to the front of this
prospectus. Furthermore, since the terms of specific guarantees
may differ from the general information we have provided below,
you should rely on information in the prospectus supplement or
term sheet that contradicts different information below.
Each guarantee by Holdings
and/or
any
Subsidiary Guarantors may:
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be senior obligations of the relevant Guarantor in the case of
senior debt securities;
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be the unsecured and unsubordinated obligations of the relevant
Guarantor in the case of senior unsecured debt securities;
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rank equally (or
pari passu
) with all other existing and
future unsubordinated and unsecured indebtedness of the relevant
Guarantor, respectively in the case of senior unsecured debt
securities; and
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with respect to any series of debt securities that is designated
as subordinated, be junior and subordinated to any guarantee of
any senior indebtedness on the same basis as such debt
securities are junior and subordinated to any senior
indebtedness.
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The obligations of each Subsidiary Guarantor under its guarantee
will be limited as necessary to prevent that guarantee from
constituting a fraudulent conveyance or fraudulent transfer
under applicable law.
Not all of our subsidiaries will guarantee the debt securities.
In the event of a bankruptcy, liquidation or reorganization of
any of these non-guarantor subsidiaries, these non-guarantor
subsidiaries will pay holders of their debts and their trade
creditors before they will be able to distribute any of their
assets to us.
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Each guarantee by a Subsidiary Guarantor will provide by its
terms that it will be automatically and unconditionally released
and discharged in accordance with its terms as more fully
described in the applicable prospectus supplement or term sheet.
DESCRIPTION
OF DEBT WARRANTS
We may issue (either separately or together with other offered
securities) debt warrants to purchase underlying debt securities
issued by us (offered debt warrants). We will issue
the debt warrants under warrant agreements (each a debt
warrant agreement) to be entered into between us and a
bank or trust company, as warrant agent (the debt warrant
agent), identified in the prospectus supplement or term
sheet.
Because this section is a summary, it does not describe every
aspect of the debt warrants and the debt warrant agreement. We
urge you to read the debt warrant agreement because it, and not
this description, defines your rights as a holder of debt
warrants. We will file the form of debt warrant agreement with
the SEC. See Where You Can Find More Information for
information on how to obtain a copy of the debt warrant
agreement.
General
You should read the prospectus supplement or term sheet for the
material terms of the offered debt warrants, including the
following:
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The title and aggregate number of the debt warrants.
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The title, rank, aggregate principal amount and terms of the
underlying debt securities purchasable upon exercise of the debt
warrants.
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The principal amount of underlying debt securities that may be
purchased upon exercise of each debt warrant, and the price or
the manner of determining the price at which this principal
amount may be purchased upon exercise.
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The time or times at which, or the period or periods during
which, the debt warrants may be exercised and the expiration
date of the debt warrants.
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Any optional redemption terms.
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Whether certificates evidencing the debt warrants will be issued
in registered or bearer form and, if registered, where they may
be transferred and exchanged.
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Whether the debt warrants are to be issued with any debt
securities or any other securities and, if so, the amount and
terms of these debt securities or other securities.
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The date, if any, on and after which the debt warrants and these
debt securities or other securities will be separately
transferable.
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Any other material terms of the debt warrants.
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The prospectus supplement or term sheet will also contain a
discussion of the United States federal income tax
considerations relevant to the offering.
Debt warrant certificates will be exchangeable for new debt
warrant certificates of different denominations. No service
charge will be imposed for any permitted transfer or exchange of
debt warrant certificates, but we may require payment of any tax
or other governmental charge payable in connection therewith.
Debt warrants may be exercised and exchanged and debt warrants
in registered form may be presented for registration of transfer
at the corporate trust office of the debt warrant agent or any
other office indicated in the prospectus supplement or term
sheet.
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Exercise
of Debt Warrants
Each offered debt warrant will entitle the holder thereof to
purchase the amount of underlying debt securities at the
exercise price set forth in, or calculable from, the prospectus
supplement or term sheet relating to the offered debt warrants.
After the close of business on the expiration date, unexercised
debt warrants will be void.
Debt warrants may be exercised by payment to the debt warrant
agent of the applicable exercise price and by delivery to the
debt warrant agent of the related debt warrant certificate,
properly completed. Debt warrants will be deemed to have been
exercised upon receipt of the exercise price and the debt
warrant certificate or certificates.
Upon receipt of this payment and the properly completed debt
warrant certificates, we will, as soon as practicable, deliver
the amount of underlying debt securities purchased upon exercise.
If fewer than all of the debt warrants represented by any debt
warrant certificate are exercised, a new debt warrant
certificate will be issued for the unexercised debt warrants.
The holder of a debt warrant will be required to pay any tax or
other governmental charge that may be imposed in connection with
any transfer involved in the issuance of underlying debt
securities purchased upon exercise.
Modifications
There are three types of changes we can make to a debt warrant
agreement and the debt warrants issued thereunder.
Changes Requiring Your Approval.
First, there
are changes that cannot be made to your debt warrants without
your specific approval. Those types of changes include
modifications and amendments that:
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accelerate the expiration date;
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reduce the number of outstanding debt warrants, the consent of
the holders of which is required for a modification or
amendment; or
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otherwise materially and adversely affect the rights of the
holders of the debt warrants.
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Changes Not Requiring Approval.
The second
type of change does not require any vote by holders of the debt
warrants. This type of change is limited to clarifications and
other changes that would not materially adversely affect the
interests of holders of the debt warrants.
Changes Requiring a Majority Vote.
Any other
change to the debt warrant agreement and the debt warrants
requires a vote in favor by holders of a majority in number of
the then outstanding unexercised debt warrants affected thereby.
Most changes fall into this category.
No Rights
as Holders of Underlying Debt Securities
Before the warrants are exercised, holders of the debt warrants
are not entitled to payments of principal, premium or interest,
if any, on the related underlying debt securities or to exercise
any rights whatsoever as holders of the underlying debt
securities.
DESCRIPTION
OF WARRANTS TO PURCHASE COMMON STOCK
Holdings may issue (either separately or together with other
offered securities) warrants to purchase common stock of
Holdings (common warrants). We will issue the common
warrants under warrant agreements (each, a common warrant
agreement) to be entered into between Holdings and a bank
or trust company, as warrant agent (the common warrant
agent), identified in the prospectus supplement or term
sheet.
Because this section is a summary, it does not describe every
aspect of the common warrants and common warrant agreement.
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General
You should read the prospectus supplement or term sheet for the
material terms of the offered common warrants, including the
following:
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The title and aggregate number of the common warrants.
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The number of shares of common stock that may be purchased upon
exercise of each common warrant; the price, or the manner of
determining the price, at which the shares may be purchased upon
exercise; if other than cash, the property and manner in which
the exercise price may be paid; and any minimum number of common
warrants that must be exercised at any one time.
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The time or times at which, or period or periods in which, the
common warrants may be exercised and the expiration date of the
common warrants.
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Any optional redemption terms.
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The terms of any right that we may have to accelerate the
exercise of the common warrants upon the occurrence of certain
events.
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Whether the common warrants will be sold with any other offered
securities and, if so, the amount and terms of these other
securities.
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The date, if any, on and after which the common warrants and any
other offered securities will be separately transferable.
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Any other terms of the common warrants.
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The prospectus supplement or term sheet will also contain a
discussion of the United States federal income tax
considerations relevant to the offering.
Certificates representing common warrants will be exchangeable
for new common warrant certificates of different denominations.
We will not impose a service charge for any permitted transfer
or exchange of common warrant certificates, but we may require
payment of any tax or other governmental charge payable in
connection therewith. Common warrants may be exercised at the
corporate trust office of the common warrant agent or any other
office indicated in the prospectus supplement or term sheet.
Exercise
of Common Warrants
Each offered common warrant will entitle the holder thereof to
purchase the number of shares of Holdings common stock at
the exercise price set forth in, or calculable from, the
prospectus supplement or term sheet relating to the common
warrants. After the close of business on the applicable
expiration date, unexercised common warrants will be void.
Common warrants may be exercised by payment to the common
warrant agent of the exercise price and by delivery to the
common warrant agent of the related common warrant certificate,
with the reverse side thereof properly completed. Common
warrants will be deemed to have been exercised upon receipt of
the exercise price and the common warrant certificate or
certificates. Upon receipt of the payment and the properly
completed common warrant certificates, we will, as soon as
practicable, deliver the shares of common stock purchased upon
the exercise.
If fewer than all of the common warrants represented by any
common warrant certificate are exercised, a new common warrant
certificate will be issued for the unexercised offered common
warrants. The holder of an offered common warrant will be
required to pay any tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance
of common stock purchased upon exercise.
Modifications
There are three types of changes Holdings can make to a common
warrant agreement and the common warrants issued thereunder.
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Changes Requiring Your Approval.
First, there
are changes that cannot be made to your common warrants without
your specific approval. Those types of changes include
modifications and amendments that:
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accelerate the expiration date;
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reduce the number of outstanding common warrants, the consent of
the holders of which is required for a modification or
amendment; or
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otherwise materially and adversely affect the rights of the
holders of the common warrants.
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Changes Not Requiring Approval.
The second
type of change does not require any vote by holders of the
common warrants. This type of change is limited to
clarifications and other changes that would not materially
adversely affect the interests of the holders of the common
warrants.
Changes Requiring a Majority Vote.
Any other
change to the common warrant agreement requires a vote in favor
by holders of not fewer than a majority in number of the then
outstanding unexercised common warrants affected thereby. Most
changes fall into this category.
Common
Warrant Adjustments
The terms and conditions on which the exercise price of
and/or
the
number of shares of common stock covered by a common warrant are
subject to adjustment will be set forth in the common warrant
agreement and the prospectus supplement or term sheet. The terms
will include provisions for adjusting the exercise price
and/or
the
number of shares of common stock covered by the common warrant;
the events requiring the adjustment; the events upon which we
may, in lieu of making the adjustment, make proper provisions so
that the holder of a common warrant, upon exercise thereof,
would be treated as if the holder had exercised the common
warrant prior to the occurrence of the events; and provisions
affecting exercise in the event of certain events affecting the
common stock.
No Rights
as Stockholders
Holders of common warrants are not entitled, by virtue of being
holders, to receive dividends or to vote, consent or receive
notice as our stockholders in respect of any meeting of
stockholders for the election of our directors or for any other
matter, or exercise any other rights whatsoever as our
stockholders.
DESCRIPTION
OF COMMON STOCK
The following summary describes elements of Holdings
Certificate of Incorporation and Bylaws.
Holdings authorized capital stock consists of
(i) 150,000,000 shares of common stock, par value $.01
per share, of which 75,339,868 shares were issued and
outstanding as of June 30, 2011, (ii) 10,000,000
shares of preferred stock, par value $.01 per share of which no
shares are issued and outstanding and
(iii) 40,000,000 shares of series common stock, par
value $.01 per share, of which no shares are issued and
outstanding. The following description of Holdings capital
stock and related matters is qualified in its entirety by
reference to the Certificate of Incorporation and the Bylaws,
copies of which are on file with the SEC.
Common
Stock
Holders of common stock are entitled to one vote per share on
all matters to be voted upon by the stockholders. The holders of
common stock do not have cumulative voting rights in the
election of directors. Holders of common stock are entitled to
receive dividends if, as and when dividends are declared from
time to time by Holdings Board of Directors out of funds
legally available therefor, after payment of dividends required
to be paid on outstanding preferred stock or series common
stock (as described below), if any. In the event of liquidation,
dissolution or winding up of Holdings, the holders of common
stock are entitled to share ratably in all assets remaining
after payment of liabilities and accrued but unpaid dividends
and liquidation preferences on any outstanding preferred stock
or series common stock of Holdings. The common stock has no
preemptive or conversion rights and is not subject to further
calls or assessment by Holdings. There are no redemption or
sinking fund provisions applicable to
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the common stock. The common stock sold by Holdings in an
offering pursuant to this prospectus, when sold to the
underwriters of such offering in the manner described in this
prospectus and the prospectus supplement or term sheet relating
to such offering will be, and all currently outstanding common
stock of Holdings is, duly authorized, validly issued, fully
paid and non-assessable.
Preferred
Stock and Series Common Stock
The Certificate of Incorporation authorizes the Board of
Directors to establish one or more series of preferred stock and
series common stock and to determine, with respect to any
series of preferred stock or series common stock, the terms
and rights of such series, including (i) the designation of
the series, (ii) the number of shares of the series, which
number the Board may thereafter (except where otherwise provided
in the preferred stock or series common stock designation)
increase or decrease (but not below the number of shares thereof
then outstanding), (iii) whether dividends, if any, will be
cumulative or non-cumulative and the dividend rate of the
series, (iv) the dates at which dividends, if any, will be
payable, (v) the redemption rights and price or prices, if
any, for shares of the series, (vi) the terms and amounts
of any sinking fund provided for the purchase or redemption of
shares of the series, (vii) the amounts payable on shares
of the series in the event of any voluntary or involuntary
liquidation, dissolution or
winding-up
of the affairs of Holdings, (viii) whether the shares of
the series will be convertible into shares of any other class or
series, or any other security, of Holdings or any other
corporation, and, if so, the specification of such other class
or series or such other security, the conversion price or prices
or rate or rates, any adjustments thereof, the date or dates as
of which such shares shall be convertible and all other terms
and conditions upon which such conversion may be made,
(ix) restrictions on the issuance of shares of the same
series or of any other class or series, and (x) the voting
rights, if any, of the holders of such series. The authorized
shares of preferred stock and series common stock, as well
as shares of common stock, will be available for issuance
without further action by Holdings stockholders, unless
such action is required by applicable law or the rules of any
stock exchange or automated quotation system on which the
Holdings securities may be listed or traded.
Although the Board has no intention at the present time of doing
so, it could issue a series of preferred stock or
series common stock that could, depending on the terms of
such series, impede the completion of a merger, tender offer or
other takeover attempt. The Board will make any determination to
issue such shares based on its judgment as to the best interests
of Holdings and its stockholders. The Board, in so acting, could
issue preferred stock or series common stock having terms
that could discourage an acquisition attempt or other
transaction that some, or a majority, of the Holdings
stockholders might believe to be in their best interests or in
which stockholders might receive a premium for their stock over
the then-current market price of such stock.
Authorized
but Unissued Capital Stock
Delaware law does not require stockholder approval for any
issuance of authorized shares. However, the listing requirements
of the New York Stock Exchange, which would apply so long as the
common stock remains listed on the New York Stock Exchange,
require stockholder approval of certain issuances equal to or
exceeding 20% of the then outstanding voting power or then
outstanding number of shares of common stock. These additional
shares may be used for a variety of corporate purposes,
including future public offerings to raise additional capital or
to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved
common stock, preferred stock and series common stock may
be to enable Holdings Board of Directors to issue shares
to persons friendly to current management, which issuance could
render more difficult or discourage an attempt to obtain control
of the Holdings by means of a merger, tender offer, proxy
contest or otherwise, and thereby protect the continuity of
Holdings management and possibly deprive the stockholders
of opportunities to sell their shares of common stock at prices
higher than prevailing market prices.
The
Delaware General Corporation Law
Holdings is a Delaware corporation subject to Section 203
of the Delaware General Corporation Law (the DGCL).
Section 203 provides that, subject to certain exceptions
specified therein, a Delaware corporation shall not engage in
certain business combinations with any
interested stockholder for a three-year period
following
37
the time that such stockholder became an interested stockholder
unless (i) the corporation has elected in its certificate
of incorporation not to be governed by Section 203
(Holdings has not made such an election), (ii) prior to
such time, the board of directors of the corporation approved
either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder,
(iii) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction
commenced (excluding certain shares), or (iv) at or
subsequent to such time, the business combination is approved by
the board of directors of the corporation and by the affirmative
vote of at least
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2
/
3
%
of the outstanding voting stock which is not owned by the
interested stockholder. The three-year prohibition also does not
apply to certain business combinations proposed by an interested
stockholder following the announcement or notification of
certain extraordinary transactions involving the corporation and
a person who had not been an interested stockholder during the
previous three years or who became an interested stockholder
with the approval of a majority of the corporations
directors. The term business combination is defined
generally to include mergers or consolidations between a
Delaware corporation and an interested stockholder,
transactions with an interested stockholder
involving the assets or stock of the corporation or its
majority-owned subsidiaries and transactions which increase an
interested stockholders percentage ownership of stock.
Except as specified in Section 203 of the DGCL, an
interested stockholder is defined to include any
person, other than the corporation and any direct or indirect
majority-owned subsidiary, that is (x) the owner of 15% or
more of the outstanding voting stock of the corporation, or is
an affiliate or associate of the corporation and was the owner
of 15% or more of the outstanding voting stock of the
corporation, at any time within three years immediately prior to
the relevant date or (y) the affiliates and associates of
any such person.
Under certain circumstances, Section 203 makes it more
difficult for a person who would be an interested
stockholder to effect various business combinations with a
corporation for a three-year period. The provisions of
Section 203 may encourage companies interested in acquiring
Holdings to negotiate in advance with Holdings Board of
Directors, because the stockholder approval requirement would be
avoided if the Board of Directors approves either the business
combination or the transaction which results in the stockholder
becoming an interested stockholder. Such provisions also may
have the effect of preventing changes in Holdings Board of
Directors and may make it more difficult to accomplish
transactions which stockholders may otherwise deem to be in
their best interests.
Certificate
of Incorporation; Bylaws
The Certificate of Incorporation and the Bylaws contain certain
provisions that could make more difficult the acquisition of
Holdings by means of a tender offer, a proxy contest or
otherwise.
Classified Board.
The Certificate of
Incorporation provides that Holdings Board of Directors
will be divided into three classes of directors, with the
classes to be as nearly equal in number as possible. As a
result, approximately one-third of the Board of Directors will
be elected each year. The classification of directors will have
the effect of making it more difficult for stockholders to
change the composition of Holdings Board. The Certificate
of Incorporation provides that, subject to any rights of holders
of Preferred Stock or Series Common Stock to elect
additional directors under specified circumstances, the number
of directors will be fixed in the manner provided in the Bylaws.
The Certificate of Incorporation and the Bylaws provide that the
number of directors will be fixed from time to time exclusively
pursuant to a resolution adopted by the Board, but must consist
of not less than three directors. In addition, the Certificate
of Incorporation provides that, subject to any rights of holders
of Preferred Stock, and unless the Board otherwise determines,
any vacancies will be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum.
Removal of Directors.
Under the DGCL, unless
otherwise provided in the Certificate of Incorporation,
directors serving on a classified board may be removed by the
stockholders only for cause. In addition, the Certificate of
Incorporation and the Bylaws provide that directors may be
removed only for cause and only upon the affirmative vote of
holders of at least 75% of the voting power of all the then
outstanding shares of stock entitled to vote generally in the
election of directors (Voting Stock), voting
together as a single class.
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Stockholder Action.
The Certificate of
Incorporation and the Bylaws provide that stockholder action can
be taken only at an annual or special meeting of stockholders
and may not be taken by written consent in lieu of a meeting.
The Certificate of Incorporation and the Bylaws provide that
special meetings of stockholders can be called only by
Holdings Chief Executive Officer or pursuant to a
resolution adopted by the Board. Stockholders are not permitted
to call a special meeting or to require that the Board call a
special meeting of stockholders. Moreover, the business
permitted to be conducted at any special meeting of stockholders
is limited to the business brought before the meeting pursuant
to the notice of meeting given by Holdings.
Advance Notice Procedures.
The Bylaws
establish an advance notice procedure for stockholders to make
nominations of candidates for election as directors, or bring
other business before an annual or special meeting of
stockholders of Holdings (the Stockholders Notice
Procedure). The Stockholders Notice Procedure provides
that only persons who are nominated by, or at the direction of
the Board of Directors, the Chairman of the Board, or by a
stockholder who has given timely written notice to the Secretary
of Holdings prior to the meeting at which directors are to be
elected, will be eligible for election as directors of Holdings.
The Stockholders Notice Procedure also provides that at an
annual meeting only such business may be conducted as has been
brought before the meeting pursuant to the notice of meeting
delivered by Holdings or by, or at the direction of, the
Chairman of the Board or by a stockholder who is entitled to
vote at the meeting and who has given timely written notice to
the Secretary of Holdings of such stockholders intention
to bring such business before such meeting. Under the
Stockholders Notice Procedure, for notice of stockholder
nominations to be made at an annual meeting to be timely, such
notice must be received by Holdings not less than 70 days
nor more than 90 days prior to the first anniversary of the
previous years annual meeting (or, if the date of the
annual meeting is advanced by more than 20 days or delayed
by more than 70 days from such anniversary date, not
earlier than the 90th day prior to such meeting and not
later than the later of (x) the 70th day prior to such
meeting and (y) the 10th day after public announcement
of the date of such meeting is first made). Notwithstanding the
foregoing, in the event that the number of directors to be
elected is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the
increased Board of Directors made by Holdings at least
80 days prior to the first anniversary of the preceding
years annual meeting, a stockholders notice will be
timely, but only with respect to nominees for any new positions
created by such increase, if it is received by Holdings not
later than the 10th day after such public announcement is
first made by Holdings. Under the Stockholders Notice Procedure,
for notice of a stockholder nomination to be made at a special
meeting at which directors are to be elected to be timely, such
notice must be received by Holdings not earlier than the
90th day before such meeting and not later than the later
of (x) the 70th day prior to such meeting and
(y) the 10th day after the public announcement of the
date of such meeting is first made. In addition, under the
Stockholders Notice Procedure, a stockholders notice to
Holdings proposing to nominate a person for election as a
director or relating to the conduct of business other than the
nomination of directors must contain certain specified
information. If the Chairman of the Board or other officer
presiding at a meeting determines that a person was not
nominated, or other business was not brought before the meeting,
in accordance with the Stockholders Notice Procedure, such
person will not be eligible for election as a director, or such
business will not be conducted at such meeting, as the case may
be.
Liability of Directors; Indemnification.
The
Certificate of Incorporation provides that a director will not
be personally liable for monetary damages to Holdings or its
stockholders for breach of fiduciary duty as a director, except
to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL. The Certificate of
Incorporation also provides that each current or former
director, officer, employee or agent of Holdings, or each such
person who is or was serving or who had agreed to serve at the
request of Holdings as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executors, administrators or
estate of such person), will be indemnified by Holdings to the
full extent permitted by the DGCL, as the same exists or may in
the future be amended (but, in the case of any such amendment,
only to the extent that such amendment permits Holdings to
provide broader indemnification rights than said law permitted
Holdings to provide prior to such amendment). The Certificate of
Incorporation also specifically authorizes Holdings to enter
into agreements with any person providing for indemnification
greater or different than that provided by the Certificate of
Incorporation.
Amendment.
The Certificate of Incorporation
provides that the affirmative vote of the holders of at least
75% of the voting power of the outstanding shares of Voting
Stock, voting together as a single class, is required to amend
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provisions of the Certificate of Incorporation relating to the
prohibition of stockholder action without a meeting; the number,
election and term of Holdings directors; and the removal
of directors. The Certificate of Incorporation further provides
that the Bylaws may be amended by the Board or by the
affirmative vote of the holders of at least 75% of the
outstanding shares of Voting Stock, voting together as a single
class.
The description set forth above is intended as a summary only
and is qualified in its entirety by reference to the forms of
the Certificate of Incorporation and the Bylaws, copies of which
are being filed as exhibits to the Registration Statement of
which this prospectus is a part.
Rights
Plan
In September 2003, Holdings Board of Directors adopted a
Stockholder Rights Plan (the Rights Plan) and
declared a dividend of one preferred share purchase right for
each outstanding share of common stock for stockholders of
record on September 25, 2003. The Rights Plan provides a
reasonable means of safeguarding the interests of all
stockholders against unsolicited takeover attempts at a price
not reflective of the Holdings fair value. The Rights Plan
is designed to give the Board of Directors sufficient time to
evaluate and respond to an unsolicited takeover attempt and to
encourage anyone or group considering such action to negotiate
first with the Board of Directors.
On October 30, 2009, Holdings amended the Rights Plan in
order to preserve the long-term value and availability of
Holdings net operating loss (NOL)
carryforwards and related tax benefits (Amended Rights
Plan). The Amended Rights Plan, among other things,
reduced the beneficial ownership threshold at which a person or
group becomes an Acquiring Person under the plan
from 15% of our then-outstanding shares of common stock to 4.99%
of Holdings then-outstanding shares of common stock. The
Amended Rights Plan also expanded the scope of the definition of
Acquiring Person to include persons or groups that
would be considered 5-percent shareholders under
Section 382 of the Internal Revenue Code of 1986, as
amended, and the treasury regulations promulgated thereunder.
Stockholders who beneficially owned 5% or more of Holdings
outstanding shares of common stock at the time of the amendment
were exempt from the 4.99% threshold, subject to certain
restrictions set forth in the Amended Rights Plan.
On February 8, 2011, Holdings Board of Directors
approved a second amended and restated rights plan (Second
Amended Rights Plan) to remove certain provisions that
were added as part of the October 2009 amendment. The Second
Amended Rights Plan, among other things, increases the
beneficial ownership threshold at which a person or group
becomes an Acquiring Person under the plan from
4.99% of the Holdings then-outstanding shares of common
stock to 15% of the Holdings then-outstanding shares of
common stock. The Second Amended Rights Plan also narrows the
scope of the definition of Acquiring Person to
exclude the reference to persons or groups that would be
considered 5-percent shareholders under
Section 382 of the Internal Revenue Code of 1986, as
amended, and the related treasury regulations promulgated
thereunder.
The Second Amended Rights Plan will automatically expire by its
terms on September 15, 2013.
Registrar
and Transfer Agent
The registrar and transfer agent for the common stock is
Computershare Trust Co. of New York.
Listing
Holdings common stock is listed on the New York Stock
Exchange under the symbol AXL.
DESCRIPTION
OF PREFERRED STOCK
Under Holdings Certificate of Incorporation, it is
authorized to adopt resolutions providing for the issuance, in
one or more series, of up to 10,000,000 shares of preferred
stock, $.01 par value, with the powers, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof adopted by
the Board of Directors or a duly authorized committee thereof.
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Because this section is a summary, it does not describe every
aspect of Holdings preferred stock. We urge you to read
Holdings Certificate of Incorporation and the certificate
of designations creating your preferred stock because they, and
not this description, define your rights as a holder of
preferred stock. Holdings has filed the Certificate of
Incorporation and will file the certificate of designations with
the SEC. See Where You Can Find More Information for
information on how to obtain copies of these documents.
The specific material terms of any preferred stock proposed to
be sold under this prospectus and an attached prospectus
supplement or term sheet will be described in the prospectus
supplement or term sheet. If so indicated in the prospectus
supplement or term sheet, the terms of the offered preferred
stock may differ from the terms set forth below.
General
Unless otherwise specified in the prospectus supplement or term
sheet relating to the offered preferred stock, each series of
preferred stock will rank on a parity as to dividends and
distribution of assets upon liquidation and in all other
respects with all other series of preferred stock. The preferred
stock will, when issued, be fully paid and nonassessable and
holders thereof will have no preemptive rights.
You should read the prospectus supplement or term sheet for the
material terms of the preferred stock offered thereby, including
the following:
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The title and stated value of the preferred stock.
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The number of shares of the preferred stock offered, the
liquidation preference per share and the offering price of the
preferred stock.
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The dividend rate(s), period(s)
and/or
payment date(s) or method(s) of calculation thereof applicable
to the preferred stock.
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The date from which dividends on the preferred stock will
accumulate, if applicable.
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The liquidation rights of the preferred stock.
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The procedures for any auction and remarketing, if any, of the
preferred stock.
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The sinking fund provisions, if applicable, for the preferred
stock.
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The redemption provisions, if applicable, for the preferred
stock.
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Whether the preferred stock will be convertible into or
exchangeable for other securities and, if so, the terms and
conditions of conversion or exchange, including the conversion
price or exchange ratio and the conversion or exchange period
(or the method of determining the same).
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Whether the preferred stock will have voting rights and the
terms thereof, if any.
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Whether the preferred stock will be listed on any securities
exchange.
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Whether the preferred stock will be issued with any other
securities and, if so, the amount and terms of these other
securities.
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Any other specific material terms, preferences or rights of, or
limitations or restrictions on, the preferred stock.
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Subject to Holdings Certificate of Incorporation and to
any limitations contained in its outstanding preferred stock,
Holdings may issue additional series of preferred stock, at any
time or from time to time, with the powers, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the
Board of Directors or any duly authorized committee thereof may
determine, all without further action of its stockholders,
including holders of its then outstanding preferred stock.
If applicable, the prospectus supplement or term sheet will also
contain a discussion of the material United States federal
income tax considerations relevant to the offering.
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Dividends
Holders of preferred stock will be entitled to receive cash
dividends, when, as and if declared by the Board of Directors,
out of Holdings assets legally available for payment, at
the rate and on the dates set forth in the prospectus supplement
or term sheet. Each dividend will be payable to holders of
record as they appear on Holdings stock books on the
record date fixed by the Board of Directors. Dividends, if
cumulative, will be cumulative from and after the date set forth
in the applicable prospectus supplement or term sheet.
Holdings may not:
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declare or pay dividends (except in its stock that is junior as
to dividends and liquidation rights to the preferred stock
(junior stock)) or make any other distributions on
junior stock, or
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purchase, redeem or otherwise acquire junior stock or set aside
funds for that purpose (except in a reclassification or exchange
of junior stock through the issuance of other junior stock or
with the proceeds of a reasonably contemporaneous sale of junior
stock),
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if there are arrearages in dividends or failure in the payment
of the sinking fund or redemption obligations on any of
Holdings preferred stock and, in the case of the first
bullet point above, if dividends in full for the current
quarterly dividend period have not been paid or declared on any
of Holdings preferred stock.
Dividends in full may not be declared or paid or set apart for
payment on any series of preferred stock unless:
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there are no arrearages in dividends for any past dividend
periods on any series of preferred stock, and
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to the extent that the dividends are cumulative, dividends in
full for the current dividend period have been declared or paid
on all preferred stock.
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Any dividends declared or paid when dividends are not so
declared, paid or set apart in full will be shared ratably by
the holders of all series of preferred stock in proportion to
the respective arrearages and undeclared and unpaid current
cumulative dividends. No interest, or sum of money in lieu of
interest, will be payable in respect of any dividend payment or
payments that may be in arrears.
Conversion
and Exchange
If the preferred stock will be convertible into or exchangeable
for common stock or other securities, the prospectus supplement
or term sheet will set forth the terms and conditions of that
conversion or exchange, including the conversion price or
exchange ratio (or the method of calculating the same), the
conversion or exchange period (or the method of determining the
same), whether conversion or exchange will be mandatory or at
the option of the holder or us, the events requiring an
adjustment of the conversion price or the exchange ratio and
provisions affecting conversion or exchange in the event of the
redemption of that preferred stock. These terms may also include
provisions under which the number of shares of common stock or
the number or amount of other securities to be received by the
holders of that preferred stock upon conversion or exchange
would be calculated according to the market price of the common
stock or those other securities as of a time stated in the
prospectus supplement or term sheet.
Liquidation
Rights
In the event of Holdings voluntary or involuntary
liquidation, dissolution or winding up, the holders of each
series of the preferred stock will be entitled to receive out of
the assets that are available for distribution to stockholders,
before any distribution of assets is made to holders of any
junior stock, liquidating distributions in the amount set forth
in the applicable prospectus supplement or term sheet plus all
accrued and unpaid dividends. If, upon Holdings voluntary
or involuntary liquidation, dissolution or winding up, the
amounts payable with respect to the preferred stock are not paid
in full, the holders of preferred stock of each series will
share ratably in the distribution of assets in proportion to the
full respective preferential amounts to which they are entitled.
After payment of the full amount of the liquidating distribution
to which they are entitled, the holders of the preferred stock
will not be entitled to any further participation in any
distribution of assets. Holdings consolidation or merger
with or into any other corporation or corporations or a sale of
all or substantially all of its assets will not be deemed to be
a liquidation, dissolution or winding up for purposes of these
provisions.
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Redemption
If so provided in the prospectus supplement or term sheet, the
offered preferred stock may be redeemable in whole or in part at
Holdings option at the times and at the redemption prices
set forth therein.
If dividends on any series of preferred stock are in arrears or
Holdings has failed to fulfill its sinking fund or redemption
obligations with respect to any series of preferred stock,
Holdings may not purchase or redeem shares of preferred stock or
any other capital stock ranking on a parity with or junior to
the preferred stock as to dividends or upon liquidation, nor
permit any subsidiary to do so, without in either case the
consent of the holders of at least two-thirds of each series of
preferred stock then outstanding;
provided
,
however
, that:
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to meet purchase, retirement or sinking fund obligations with
respect to any series of preferred stock, Holdings may use
shares of that preferred stock acquired prior to the arrearages
or failure of payment and then held as treasury stock, and
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Holdings may complete the purchase or redemption of shares of
preferred stock for which a contract was entered into for any
purchase, retirement or sinking fund purposes prior to the
arrearages or failure of payment.
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Voting
Rights
Except as indicated below or in the prospectus supplement or
term sheet, or except as expressly required by applicable law,
the holders of the preferred stock will not be entitled to vote.
As used herein, the term applicable preferred stock
means those series of preferred stock to which the provisions
described herein are expressly made applicable by resolutions of
the Board of Directors.
If the equivalent of six quarterly dividends payable on any
shares of any series of applicable preferred stock are in
default (whether or not the dividends have been declared or the
defaulted dividends are consecutive), the number of directors
will be increased by two and the holders of all outstanding
series of applicable preferred stock, voting as a single class
without regard to series, will be entitled to elect the two
additional directors until four consecutive quarterly dividends
are paid or declared and set apart for payment, if the shares
are cumulative, or until all arrearages in dividends and
dividends in full for the current quarterly period are paid or
declared and set apart for payment, if the shares are
non-cumulative, whereupon all voting rights described herein
will be divested from the applicable preferred stock. The
holders of applicable preferred stock may exercise their special
class voting rights at meetings of the stockholders for the
election of directors or at special meetings for the purpose of
electing directors, in either case at which the holders of not
less than one-third of the aggregate number of shares of
applicable preferred stock are present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of
the outstanding shares of any series of preferred stock will be
required:
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for any amendment of the Certificate of Incorporation (or the
related certificate of designations) that will adversely affect
the powers, preferences or rights of the holders of the
preferred stock of that series, or
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to create any class of stock (or increase the authorized number
of shares of any class of stock) that will have preference as to
dividends or upon liquidation over the preferred stock of that
series or create any stock or other security convertible into or
exchangeable for or evidencing the right to purchase any stock
of that class.
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In addition, the affirmative vote of the holders of a majority
of all the shares of Holdings preferred stock then
outstanding will be required to increase the authorized amount
of preferred stock.
SPECIAL
PROVISIONS RELATING TO FOREIGN CURRENCY DEBT
SECURITIES
General
Unless otherwise indicated in the applicable prospectus
supplement or term sheet, the debt securities will be
denominated in U.S. dollars, payments of principal of,
premium, if any, and interest on the debt securities will be
made in U.S. dollars and payment of the purchase price of
the debt securities must be made in immediately available
43
funds. If any of the debt securities (Foreign Currency
Debt Securities) are to be denominated or payable in a
currency (a specified currency) other than
U.S. dollars, the following provisions will apply in
addition to, and to the extent inconsistent therewith will
replace, the description of general terms and provisions of debt
securities set forth in the accompanying prospectus and
elsewhere in this prospectus.
A prospectus supplement or term sheet with respect to any
Foreign Currency Debt Security (which may include information
with respect to applicable current foreign exchange controls) is
a part of this prospectus and prospectus supplement or term
sheet. Any information concerning exchange rates is furnished as
a matter of information only and should not be regarded as
indicative of the range of or trends in fluctuations in currency
exchange rates that may occur in the future.
Currencies
We may offer Foreign Currency Debt Securities denominated
and/or
payable in a specified currency or specified currencies. Unless
otherwise indicated in the applicable prospectus supplement or
term sheet, purchasers are required to pay for Foreign Currency
Debt Securities in the specified currency. At the present time,
there are limited facilities in the United States for conversion
of U.S. dollars into specified currencies and vice versa,
and banks may elect not to offer
non-U.S. dollar
checking or savings account facilities in the United States.
However, if requested on or prior to the fifth Business Day
preceding the date of delivery of the Foreign Currency Debt
Securities, or by such other day as determined by the agent who
presents such offer to purchase Foreign Currency Debt Securities
to us, such agent may be prepared to arrange for the conversion
of U.S. dollars into the specified currency set forth in
the applicable prospectus supplement or term sheet to enable the
purchasers to pay for the Foreign Currency Debt Securities. Each
such conversion will be made by the agents on such terms and
subject to such conditions, limitations and charges as the
agents may from time to time establish in accordance with their
regular foreign exchange practices. All costs of exchange will
be borne by the purchasers of the Foreign Currency Debt
Securities.
Information about the specified currency in which a particular
Foreign Currency Debt Security is denominated
and/or
payable, including historical exchange rates and a description
of the currency and any exchange controls, will be set forth in
the applicable prospectus supplement or term sheet.
Payment
of Principal and Interest
The principal of, premium, if any, and interest on Foreign
Currency Debt Securities is payable by us in the specified
currency. Currently, banks do not generally offer
non-U.S. dollar-denominated
account facilities in their offices in the United States,
although they are permitted to do so. Accordingly, a holder of
Foreign Currency Debt Securities will be paid in
U.S. dollars converted from the specified currency unless
the holder is entitled to elect, and does elect, to be paid in
the specified currency, or as otherwise specified in the
applicable prospectus supplement or term sheet.
Any U.S. dollar amount to be received by a holder of a
Foreign Currency Debt Security will be based on the highest bid
quotation in The City of New York received by an agent for us
specified in the applicable prospectus supplement or term sheet
(the Exchange Rate Agent) at approximately
11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized
foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by us
for the purchase by the quoting dealer of the specified currency
for U.S. dollars for settlement on the payment date in the
aggregate amount of the specified currency payable to all
holders of Foreign Currency Debt Securities scheduled to receive
U.S. dollar payments and at which the applicable dealer
commits to execute a contract. If three bid quotations are not
available, payments will be made in the specified currency. All
currency exchange costs will be borne by the holder of the
Foreign Currency Debt Security by deductions from such payments.
Unless otherwise indicated in the applicable prospectus
supplement or term sheet, a holder of Foreign Currency Debt
Securities may elect to receive payment of the principal of, and
premium, if any, and interest on the Foreign Currency Debt
Securities in the specified currency by transmitting a written
request for such payment to the corporate trust office of the
trustee in The City of New York on or prior to the regular
record date or at least fifteen calendar days prior to Maturity
Date, as the case may be. This request may be in writing (mailed
or hand delivered)
44
or sent by cable, telex or other form of facsimile transmission.
A holder of a Foreign Currency Debt Security may elect to
receive payment in the specified currency for all principal,
premium, if any, and interest payments and need not file a
separate election for each payment. This election will remain in
effect until revoked by written notice to the trustee, but
written notice of any revocation must be received by the trustee
on or prior to the regular record date or at least fifteen
calendar days prior to the Maturity Date, as the case may be.
Holders of Foreign Currency Debt Securities whose debt
securities are to be held in the name of a broker or nominee
should contact their brokers or nominees to determine whether
and how an election to receive payments in the specified
currency may be made.
Unless otherwise specified in the applicable prospectus
supplement or term sheet, if the specified currency is other
than U.S. dollars, a beneficial owner of the related global
security who elects to receive payments of principal, premium,
if any,
and/or
interest, if any, in the specified currency must notify its
participant through which it owns its beneficial interest on or
prior to the applicable record date or at least fifteen calendar
days prior to the Maturity Date, as the case may be, of such
beneficial owners election. The participant must notify
the depositary of such election on or prior to the third
Business Day after such record date or at least 12 calendar days
prior to the Maturity Date, as the case may be, and the
depositary will notify the trustee of such election on or prior
to the fifth Business Day after such record date or at least ten
calendar days prior to the Maturity Date, as the case may be. If
complete instructions are received by the participant from the
beneficial owner and forwarded by the participant to the
depositary, and by the depositary to the trustee, on or prior to
such dates, then the beneficial owner will receive payments in
the specified currency. See Description of Debt
Securities Global Securities in the
accompanying prospectus.
Principal and interest on Foreign Currency Debt Securities paid
in U.S. dollars will be paid in the manner specified in the
accompanying prospectus supplement or term sheet and this
prospectus with respect to debt securities denominated in
U.S. dollars. Interest on Foreign Currency Debt Securities
paid in the specified currency will be paid by check mailed on
an Interest Payment Date other than a Maturity Date to the
persons entitled thereto to the addresses of such holders as
they appear in the security register or, at our option, by wire
transfer to a bank account maintained by the holder in the
country of the specified currency. The principal of, premium, if
any, and interest on Foreign Currency Debt Securities, together
with interest accrued and unpaid thereon, due on the Maturity
Date will be paid, in the specified currency in immediately
available funds upon surrender of such debt securities at the
corporate trust office of the trustee in The City of New York,
or, at our option, by wire transfer to such bank account of
immediately available funds to an account with a bank designated
at least 15 calendar days prior to the Maturity Date by the
applicable registered holder, provided the particular bank has
appropriate facilities to make these payments and the particular
Foreign Currency Debt Security is presented and surrendered at
the office or agency maintained by us for this purpose in the
Borough of Manhattan, The City of New York, in time for the
trustee to make these payments in accordance with its normal
procedures.
Payment
Currency
If a specified currency is not available for the payment of
principal, premium or interest with respect to a Foreign
Currency Debt Security due to the imposition of exchange
controls or other circumstances beyond our control, we will be
entitled to satisfy our obligations to holders of Foreign
Currency Debt Securities by making such payment in
U.S. dollars on the basis of the noon buying rate in The
City of New York for cable transfers of the specified currency
as certified for customs purposes (or, if not so certified, as
otherwise determined) by the Federal Reserve Bank of New York
(the Market Exchange Rate) as computed by the
Exchange Rate Agent on the second Business Day prior to such
payment or, if not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise
indicated in an applicable prospectus supplement or term sheet.
Any payment made under these circumstances in U.S. dollars
where the required payment is in a specified currency will not
constitute a default under the Indenture with respect to the
Debt Securities.
All determinations referred to above made by the Exchange Rate
Agent will be at its sole discretion and will, in the absence of
manifest error, be conclusive for all purposes and binding on
the holders of the Foreign Currency Debt Securities.
AS INDICATED ABOVE, AN INVESTMENT IN FOREIGN CURRENCY DEBT
SECURITIES OR CURRENCY INDEXED DEBT SECURITIES INVOLVES
SUBSTANTIAL RISKS, AND THE EXTENT AND NATURE OF SUCH RISKS
CHANGE CONTINUOUSLY. AS WITH ANY INVESTMENT IN A
45
SECURITY, PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN
FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED IN AN
INVESTMENT IN FOREIGN CURRENCY DEBT SECURITIES OR CURRENCY
INDEXED DEBT SECURITIES. SUCH DEBT SECURITIES ARE NOT AN
APPROPRIATE INVESTMENT FOR PROSPECTIVE PURCHASERS WHO ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY MATTERS.
PLAN OF
DISTRIBUTION
We may sell the offered securities:
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through agents;
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to or through underwriters; or
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directly to other purchasers.
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Any underwriters or agents will be identified and their
discounts, commissions and other items constituting
underwriters compensation and any securities exchanges on
which the securities are listed will be described in the
applicable prospectus supplement or term sheet.
We (directly or through agents) may sell, and the underwriters
may resell, the offered securities in one or more transactions,
including negotiated transactions, at a fixed public offering
price or prices, which may be changed, or at market prices
prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices.
In order to facilitate the offering of the debt securities, the
underwriters or agents may engage in transactions that
stabilize, maintain or otherwise affect the price of the debt
securities and our common stock. These transactions may include
short sales, stabilizing transactions and purchases to cover
positions created by short sales. Short sales involve the sale
by the underwriters or agents of a greater number of debt
securities than they are required to purchase in the offering.
Covered short sales are sales made in an amount not
greater than the underwriters or agents option to
purchase additional debt securities from us in the offering. The
underwriters or agents may close out any covered short position
by either exercising the option to purchase additional debt
securities or purchasing debt securities in the open market. In
determining the source of debt securities to close out the
covered short position, the underwriters or agents will
consider, among other things, the price of debt securities
available for purchase in the open market as compared to the
price at which they may purchase debt securities through the
option. Naked short sales are sales in excess of the
option. The underwriters or agents must close out any naked
short position by purchasing debt securities in open market. A
naked short position is more likely to be created if the
underwriters or agents are concerned that there may be a
downward pressure on the price of the debt securities in the
open market after pricing that could adversely affect investors
who purchase in the offering. Stabilizing transactions consist
of certain bids for or purchases of the debt securities made by
the underwriters or agents in the open market prior to the
completion of the offering. Any of these activities may
stabilize or maintain the market price of the debt securities
above independent market levels. The underwriters or agents are
not required to engage in these activities, and may end any of
these activities at any time.
In connection with the sale of offered securities, the
underwriters or agents may receive compensation from us or from
purchasers of the offered securities for whom they may act as
agents. The underwriters may sell offered securities to or
through dealers, who may also receive compensation from
purchasers of the offered securities for whom they may act as
agents. Compensation may be in the form of discounts,
concessions or commissions. Underwriters, dealers and agents
that participate in the distribution of the offered securities
may be underwriters as defined in the Securities Act of 1933
(the Act), and any discounts or commissions received
by them from us and any profit on the resale of the offered
securities by them may be treated as underwriting discounts and
commissions under the Act.
We will indemnify the underwriters and agents against certain
civil liabilities, including liabilities under the Act, or
contribute to payments they may be required to make in respect
of such liabilities.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us or our affiliates in the
ordinary course of their businesses.
46
If so indicated in the prospectus supplement or term sheet
relating to a particular series or issue of offered securities,
we will authorize underwriters, dealers or agents to solicit
offers by certain institutions to purchase the offered
securities from us under delayed delivery contracts providing
for payment and delivery at a future date. These contracts will
be subject only to those conditions set forth in the prospectus
supplement or term sheet, and the prospectus supplement or term
sheet will set forth the commission payable for solicitation of
these contracts.
LEGAL
MATTERS
The validity of the Holdings and AAM Inc. securities will be
passed upon for us by Shearman & Sterling LLP, 599
Lexington Avenue, New York, New York 10022. Richard G.
Raymond, who is General Counsel of Holdings and AAM Inc., will
give us an opinion about the validity of the guarantees by the
Subsidiary Guarantors. Mr. Raymond owns Holdings common
stock and options to purchase shares of Holdings common stock.
EXPERTS
The financial statements, and the related financial statement
schedule, incorporated in this prospectus by reference from
Holdings Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010, and the
effectiveness of Holdings internal control over financial
reporting have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in
their report which is incorporated herein by reference. Such
financial statements and financial statement schedule have been
so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
47
AMERICAN AXLE &
MANUFACTURING, INC.
AMERICAN AXLE &
MANUFACTURING HOLDINGS, INC.
AAM International Holdings,
Inc.
AccuGear, Inc.
Colfor Manufacturing,
Inc.
DieTronik, Inc.
MSP Industries
Corporation
Oxford Forge, Inc.
Debt Securities
Guarantees
Warrants to Purchase Debt Securities
Warrants to Purchase Common Stock
Common Stock
Preferred Stock
PROSPECTUS
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the expenses in connection with
the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions.
All of the amounts shown are estimates, except the SEC
registration fee.
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SEC registration fee
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*
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Printing and engraving
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$
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100,000
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Legal fees and expenses
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100,000
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Accounting fees
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50,000
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Trustees fees
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5,000
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Total
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$
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255,000
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*
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Deferred in accordance with Rules 456(b) and 457(r) of the
Securities Act of 1933.
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Item 15.
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Indemnification
of Directors and Officers.
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Section 145 of the General Corporation Law of Delaware
authorizes the Registrant to indemnify its directors and
officers under specified circumstances. Article Twelve of
the Certificate of Incorporation of the Registrant provides in
effect that the Registrant shall provide certain indemnification
of its directors and officers.
Section 145 of the General Corporation Law of Delaware also
authorizes the Registrant to indemnify persons who serve as
directors or officers of the Registrant at the request of the
Registrant under specified circumstances. Article Six of
the Restated Certificate of Incorporation of the Registrant
provides in effect that the Registrant shall provide certain
indemnification to such persons under certain circumstances.
The directors and officers of the Registrant are insured, under
policies of insurance maintained by the Registrant, within the
limits and subject to the limitations of the policies, against
certain expenses in connection with the defense of actions,
suits or proceedings, to which they are parties by reason of
being or having been such directors or officers.
The underwriting agreement basic provisions will provide for
indemnification of directors, officers who sign the Registration
Statement and controlling persons of the Registrant by the
underwriters, and for indemnification of each underwriter and
its controlling persons by the Registrant, against certain
liabilities. Similar provisions are contained in agreements
entered into between the Registrant and groups of underwriters
on past occasions.
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Item 16.
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List
of Exhibits.
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The exhibits to this Registration Statement are listed in the
exhibit index, which appears elsewhere herein and is
incorporated herein by reference.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
II-1
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table
in the effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
provided
,
however
, that clauses (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those clauses is
contained in reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
Registration Statement as of the date the filed prospectus was
deemed part of and included in the Registration
Statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the Registration Statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the Registration
Statement relating to the securities in the Registration
Statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof;
provided
,
however
,
that no statement made in a registration statement or prospectus
that is part of the Registration Statement or made in a document
incorporated or deemed incorporated by reference into the
Registration Statement or prospectus that is part of the
Registration Statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the Registration Statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this Registration
Statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
II-2
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plans annual report pursuant to
section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of
Rule 14a-3
or
Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of
Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the Trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939, as amended, in
accordance with the rules and regulations prescribed by the
Securities and Exchange Commission under Section 305(b)(2)
of the Trust Indenture Act of 1939, as amended.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
AMERICAN AXLE & MANUFACTURING, INC.
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By:
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/s/ MICHAEL
K. SIMONTE
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Michael K. Simonte
Executive Vice President Finance & Chief
Financial Officer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Steven R. Keyes his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ RICHARD
E. DAUCH
Richard
E. Dauch
|
|
Co-Founder, Chairman of the Board & Chief
Executive Officer/Director (principal
executive officer)
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Executive Vice President Finance & Chief
Financial Officer (principal financial officer) (principal
accounting officer)
|
|
July 12, 2011
|
|
|
|
|
|
/s/ FOREST
J. FARMER
Forest
J. Farmer
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ RICHARD
C. LAPPIN
Richard
C. Lappin
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ THOMAS
K. WALKER
Thomas
K. Walker
|
|
Director
|
|
July 12, 2011
|
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC.
|
|
|
|
By:
|
/s/ MICHAEL
K. SIMONTE
|
Michael K. Simonte
Executive Vice President Finance & Chief
Financial Officer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Steven R. Keyes his or her true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ RICHARD
E. DAUCH
Richard
E. Dauch
|
|
Co-Founder, Chairman of the Board & Chief Executive
Officer/Director (principal
executive officer)
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Executive Vice President Finance & Chief
Financial Officer (principal financial officer) (principal
accounting officer)
|
|
July 12, 2011
|
|
|
|
|
|
/s/ SALVATORE
J. BONANNO, SR.
Salvatore
J. Bonanno, Sr.
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ ELIZABETH
A. CHAPPELL
Elizabeth
A. Chappell
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ DAVID
C. DAUCH
David
C. Dauch
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ FOREST
J. FARMER
Forest
J. Farmer
|
|
Director
|
|
July 12, 2011
|
II-5
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ RICHARD
C. LAPPIN
Richard
C. Lappin
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ JAMES
A. MCCASLIN
James
A. McCaslin
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ WILLIAM
P. MILLER II
William
P. Miller II
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ LARRY
K. SWITZER
Larry
K. Switzer
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ THOMAS
K. WALKER
Thomas
K. Walker
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ DR. HENRY
T. YANG
Dr. Henry
T. Yang
|
|
Director
|
|
July 12, 2011
|
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
AAM INTERNATIONAL HOLDINGS, INC.
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ DAVID
C. DAUCH
David
C. Dauch
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
ACCUGEAR, INC.
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ STEVEN
R. KEYES
Steven
R. Keyes
|
|
Director
|
|
July 12, 2011
|
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
COLFOR MANUFACTURING, INC.
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ STEVEN
R. KEYES
Steven
R. Keyes
|
|
Director
|
|
July 12, 2011
|
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
DIETRONIK, INC.
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ STEVEN
R. KEYES
Steven
R. Keyes
|
|
Director
|
|
July 12, 2011
|
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
MSP INDUSTRIES CORPORATION
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ STEVEN
R. KEYES
Steven
R. Keyes
|
|
Director
|
|
July 12, 2011
|
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit, State of Michigan, on July 12, 2011.
OXFORD FORGE, INC.
Shannon J. Curry
Treasurer
Each person whose signature appears below hereby constitutes and
appoints Michael K. Simonte and Shannon J. Curry his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacitates, to sign
any and all amendments (including post-effective amendments) and
supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other document in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to
all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ JOHN
J. BELLANTI
John
J. Bellanti
|
|
Chairman of the Board
|
|
July 12, 2011
|
|
|
|
|
|
/s/ MICHAEL
K. SIMONTE
Michael
K. Simonte
|
|
Director
|
|
July 12, 2011
|
|
|
|
|
|
/s/ STEVEN
R. KEYES
Steven
R. Keyes
|
|
Director
|
|
July 12, 2011
|
II-12
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
|
|
*1
|
.1
|
|
Form of Debt Securities Underwriting Agreement
|
|
*1
|
.2
|
|
Form of Equity Securities Underwriting Agreement
|
|
+3
|
.1
|
|
Amended and Restated Certificate of Incorporation of American
Axle & Manufacturing Holdings, Inc. (Incorporated by
reference to Exhibit 3.01 filed with American
Axle & Manufacturing Holdings, Inc. Registration
Statement on
Form S-1
(Registration
No. 333-53491))
|
|
+3
|
.2
|
|
Bylaws of American Axle & Manufacturing Holdings, Inc.
(Incorporated by reference to Exhibit 3.02 filed with
American Axle & Manufacturing Holdings, Inc.
Registration Statement on
Form S-1
(Registration
No. 333-53491))
|
|
+4
|
.1
|
|
Specimen Certificate for shares of American Axle &
Manufacturing Holdings, Inc.s Common Stock (Incorporated
by reference to Exhibit 4.01 filed with American
Axle & Manufacturing Holdings, Inc. Registration
Statement on
Form S-1
(Registration
No. 333-53491))
|
|
*4
|
.2
|
|
Form of Certificate of Designations of Preferred Stock
|
|
4
|
.3
|
|
Form of Indenture, among American Axle &
Manufacturing, Inc., American Axle & Manufacturing
Holdings, Inc., as guarantor, certain subsidiary guarantors and
U.S. Bank National Association, as trustee
|
|
*4
|
.4
|
|
Form of Debt Securities
|
|
*4
|
.5
|
|
Form of Warrant Agreement (including Form of Warrant)
|
|
+4
|
.6
|
|
Amended and Restated Rights Agreement, dated as of
October 30, 2009, between American Axle &
Manufacturing Holdings, Inc. and Computershare Trust Company,
N.A., as Rights Agent (Incorporated by reference to
Exhibit 4.01 of Current Report on
Form 8-K
dated November 2, 2009)
|
|
+4
|
.7
|
|
Second Amended and Restated Rights Agreement, dated as of
February 8, 2011, between American Axle &
Manufacturing Holdings, Inc. and Computershare Trust Company,
N.A., as Rights Agent (Incorporated by reference to
Exhibit 4.01 of Current Report on
Form 8-K
dated February 8, 2011)
|
|
5
|
.1
|
|
Opinion of Shearman & Sterling LLP as to legality of
certain of the Securities
|
|
5
|
.2
|
|
Opinion of Richard G. Raymond, General Counsel of American
Axle & Manufacturing Holdings, Inc. and American
Axle & Manufacturing, Inc., as to the legality of the
Subsidiary Guarantees
|
|
12
|
.1
|
|
Statement of computation of ratios of earnings to fixed charges
of American Axle & Manufacturing Holdings, Inc.
|
|
23
|
.1
|
|
Consent of Deloitte & Touche LLP, independent
registered public accounting firm
|
|
23
|
.2
|
|
Consent of Shearman & Sterling LLP (included in
Exhibit 5.1)
|
|
23
|
.3
|
|
Consent of Richard G. Raymond (included in Exhibit 5.2)
|
|
24
|
.1
|
|
Power of Attorney (included in signature pages)
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939 of U.S. Bank National Association, as Trustee for the
Debt Securities
|
|
|
|
*
|
|
To be filed as an exhibit to a Current Report on
Form 8-K
in connection with a specific offering.
|
|
+
|
|
Incorporated by reference.
|
Exhibit 4.3
INDENTURE
among
AMERICAN AXLE & MANUFACTURING, INC.,
as Issuer
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
as Guarantor
Certain Subsidiary Guarantors
and
U. S. Bank National Association,
as Trustee
Dated as of , 2011
Providing for the Issuance of Debt Securities in Series
AMERICAN AXLE & MANUFACTURING, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 2011
|
|
|
Trust Indenture
|
|
|
Act Section
|
|
Indenture Section
|
Sec. 310(a)(1)
|
|
607
|
(a)(2)
|
|
607
|
(b)
|
|
608
|
Sec. 312(c)
|
|
701
|
Sec. 314(a)
|
|
703
|
(a)(4)
|
|
1004
|
(c)(1)
|
|
102
|
(c)(2)
|
|
102
|
(e)
|
|
102
|
Sec. 315(b)
|
|
601
|
Sec. 316(a)(last
sentence)
|
|
101 (Outstanding)
|
(a)(1)(A)
|
|
502, 512
|
(a)(1)(B)
|
|
513
|
(b)
|
|
508
|
(c)
|
|
104(c)
|
Sec. 317(a)(1)
|
|
503
|
(a)(2)
|
|
504
|
(b)
|
|
1003
|
Sec. 318(a)
|
|
111
|
|
|
|
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
PARTIES
|
|
|
1
|
|
RECITALS OF THE COMPANY
|
|
|
1
|
|
|
|
|
|
|
ARTICLE ONE
|
|
|
|
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
SECTION 101. Definitions
|
|
|
2
|
|
SECTION 102. Compliance Certificates and Opinions
|
|
|
13
|
|
SECTION 103. Form of Documents Delivered to Trustee
|
|
|
13
|
|
SECTION 104. Acts of Holders
|
|
|
14
|
|
SECTION 105. Notices, etc. to Trustee, Company, the Guarantor or Subsidiary Guarantors
|
|
|
16
|
|
SECTION 106. Notice to Holders; Waiver
|
|
|
16
|
|
SECTION 107. Effect of Headings and Table of Contents
|
|
|
17
|
|
SECTION 108. Successors and Assigns
|
|
|
17
|
|
SECTION 109. Separability Clause
|
|
|
17
|
|
SECTION 110. Benefits of Indenture
|
|
|
17
|
|
SECTION 111. Governing Law
|
|
|
17
|
|
SECTION 112. Legal Holidays
|
|
|
18
|
|
SECTION 113. No Recourse
|
|
|
18
|
|
SECTION 114. Incorporation by Reference of Trust Indenture Act
|
|
|
18
|
|
SECTION 115. Rules of Construction
|
|
|
19
|
|
SECTION 116.
USA Patriot Act
|
|
|
19
|
|
|
|
|
|
|
ARTICLE TWO
|
|
|
|
|
|
SECURITY FORMS
|
|
|
|
|
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SECTION 201. Forms Generally
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19
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SECTION 202. Form of Trustees Certificate of Authentication
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20
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SECTION 203. Securities Issuable in Global Form
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20
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ARTICLE THREE
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THE SECURITIES
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SECTION 301. Amount Unlimited; Issuable in Series
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21
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SECTION 302. Denominations
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25
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SECTION 303. Execution, Authentication, Delivery and Dating
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25
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SECTION 304. Temporary Securities
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28
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SECTION 305. Registration, Registration of Transfer and Exchange
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30
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Note: This table of contents shall not, for
any purpose, be deemed to be a part of the Indenture.
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Page
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
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34
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SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset
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35
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SECTION 308. Optional Extension of Maturity
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37
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SECTION 309. Persons Deemed Owners
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38
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SECTION 310. Cancellation
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39
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SECTION 311. Computation of Interest
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40
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SECTION 312. Currency and Manner of Payments in Respect of Securities
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40
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SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent
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43
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ARTICLE FOUR
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SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture
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44
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SECTION 402. Application of Trust Money
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45
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ARTICLE FIVE
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REMEDIES
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SECTION 501. Events of Default
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45
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SECTION 502. Acceleration of Maturity; Rescission and Annulment
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47
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
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48
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SECTION 504. Trustee May File Proofs of Claim
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49
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities
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50
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SECTION 506. Application of Money Collected
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50
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SECTION 507. Limitation on Suits
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50
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
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51
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SECTION 509. Restoration of Rights and Remedies
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51
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SECTION 510. Rights and Remedies Cumulative
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52
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SECTION 511. Delay or Omission Not Waiver
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52
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SECTION 512. Control by Holders
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52
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SECTION 513. Waiver of Past Defaults
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52
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SECTION 514. Undertaking for Costs
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53
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SECTION 515. Waiver of Stay or Extension Laws
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53
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ARTICLE SIX
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THE TRUSTEE
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SECTION 601. Notice of Defaults
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54
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SECTION 602. Certain Duties, Responsibilities and Rights of Trustee
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54
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SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities
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56
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SECTION 604. May Hold Securities
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57
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SECTION 605. Money Held in Trust
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57
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SECTION 606. Compensation and Reimbursement
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57
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SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests; Disqualification
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58
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Page
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SECTION 608. Resignation and Removal; Appointment of Successor
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58
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SECTION 609. Acceptance of Appointment by Successor
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60
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SECTION 610. Merger, Conversion, Consolidation or Succession to Business
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61
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SECTION 611. Appointment of Authenticating Agent
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61
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ARTICLE SEVEN
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HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
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SECTION 701. Disclosure of Names and Addresses of Holders
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63
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SECTION 702. Reports by Trustee
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63
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SECTION 703. Reports by Company
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63
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ARTICLE EIGHT
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 801. Company and Guarantor May Consolidate, etc., Only on Certain Terms
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64
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SECTION 802. Successor Person Substituted
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65
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ARTICLE NINE
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SUPPLEMENTAL INDENTURES
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SECTION 901. Supplemental Indentures Without Consent of Holders
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65
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SECTION 902. Supplemental Indentures with Consent of Holders
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67
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SECTION 903. Execution of Supplemental Indentures
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68
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SECTION 904. Effect of Supplemental Indentures
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68
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SECTION 905. Conformity with Trust Indenture Act
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68
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SECTION 906. Reference in Securities to Supplemental Indentures
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68
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SECTION 907. Notice of Supplemental Indentures
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68
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SECTION 908. Effect on Senior Indebtedness
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68
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ARTICLE TEN
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COVENANTS
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SECTION 1001. Payment of Principal, Premium, if Any, and Interest
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69
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SECTION 1002. Maintenance of Office or Agency
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69
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SECTION 1003. Money for Securities Payments to Be Held in Trust
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70
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SECTION 1004. Statement by Officers as to Default
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71
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SECTION 1005. Existence
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71
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SECTION 1006. Limitation on Liens
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72
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SECTION 1007. Limitation on Sale and Leaseback Transactions
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73
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SECTION 1008. SEC and Other Reports
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74
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SECTION 1009. Further Instruments and Acts
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74
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SECTION 1010. Calculation of Original Issue Discount
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74
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Page
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SECTION 1011. Additional Amounts
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74
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SECTION 1012. Waiver of Certain Covenants
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75
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
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SECTION 1101. Applicability of Article
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76
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SECTION 1102. Election to Redeem; Notice to Trustee
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76
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed
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76
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SECTION 1104. Notice of Redemption
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76
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SECTION 1105. Deposit of Redemption Price
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78
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SECTION 1106. Securities Payable on Redemption Date
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78
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SECTION 1107. Securities Redeemed in Part
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79
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ARTICLE TWELVE
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SINKING FUNDS
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SECTION 1201. Applicability of Article
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79
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
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79
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SECTION 1203. Redemption of Securities for Sinking Fund
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80
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ARTICLE THIRTEEN
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REPAYMENT AT OPTION OF HOLDERS
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SECTION 1301. Applicability of Article
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81
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SECTION 1302. Repayment of Securities
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81
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SECTION 1303. Exercise of Option
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81
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SECTION 1304. When Securities Presented for Repayment Become Due and Payable
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82
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SECTION 1305. Securities Repaid in Part
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83
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ARTICLE FOURTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 1401. Companys Option to Effect Defeasance or Covenant Defeasance
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83
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SECTION 1402. Defeasance and Discharge
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83
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SECTION 1403. Covenant Defeasance
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84
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance
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84
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SECTION
1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
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86
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SECTION 1406. Reinstatement
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87
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Page
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ARTICLE FIFTEEN
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MEETINGS OF HOLDERS OF SECURITIES
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SECTION 1501. Purposes for Which Meetings May Be Called
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87
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SECTION 1502. Call, Notice and Place of Meetings
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87
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SECTION 1503. Persons Entitled to Vote at Meetings
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87
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SECTION 1504. Quorum; Action
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88
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SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings
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89
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SECTION 1506. Counting Votes and Recording Action of Meetings
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90
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ARTICLE SIXTEEN
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GUARANTEE BY THE GUARANTOR
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SECTION 1601. Guarantee
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90
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SECTION 1602. Severability
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92
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SECTION 1603. Priority of Guarantee
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92
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SECTION 1604. Limitation of Guarantors Liability
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92
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SECTION 1605. Subrogation
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92
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SECTION 1606. Reinstatement
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92
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SECTION 1607. Release of the Guarantor
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92
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SECTION 1608. Benefits Acknowledged
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93
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ARTICLE SEVENTEEN
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GUARANTEE BY THE SUBSIDIARY GUARANTORS
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SECTION 1701. Guarantee
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93
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SECTION 1702. Severability
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94
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SECTION 1703. Priority of Guarantee
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94
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SECTION 1704. Limitation of Subsidiary Guarantors Liability
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|
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95
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SECTION 1705. Subrogation
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95
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SECTION 1706. Reinstatement
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95
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SECTION 1707. Release of the Subsidiary Guarantors
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95
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SECTION 1708. Benefits Acknowledged
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96
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EXHIBIT A FORMS OF CERTIFICATION
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INDENTURE, dated as of , 2011, among AMERICAN AXLE & MANUFACTURING, INC., a Delaware
corporation (the Company), having its principal office at One Dauch Drive, Detroit, Michigan
48211-1198, AMERICAN AXLE & MANUFACTURING HOLDINGS, INC., a Delaware corporation (the Guarantor
and Holdings), as Guarantor, AAM INTERNATIONAL HOLDINGS, INC, a Delaware corporation, ACCUGEAR,
INC., a Delaware corporation, COLFOR MANUFACTURING, INC. a Delaware corporation, DIETRONIK, INC., a
Delaware corporation, MSP INDUSTRIES CORPORATION, a Michigan corporation, and OXFORD FORGE, INC.,
a Delaware corporation (collectively, the Subsidiary Guarantors) and U.S. Bank National
Association, a national banking association, as Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured senior or subordinated debentures,
notes or other evidences of indebtedness (herein called the Securities), which may be convertible
into or exchangeable for any securities of any person (including the Company), to be issued in one
or more series as in this Indenture provided; and
WHEREAS, Holdings desires with respect to Securities of certain series issued under this
Indenture to make the Guarantees provided for herein; and
WHEREAS, the Company and Holdings wish to permit certain Subsidiaries of the Company to make
the Guarantees permitted pursuant to Section 301 and set forth in Section 1701 with respect to
Securities of certain series issued under this Indenture;
WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be part of this Indenture, and shall be governed by such provisions;
provided
that if any provision of this Indenture modifies any TIA provision that may be so
modified, such TIA provision shall be deemed to apply to this Indenture as so modified;
provided
further
that if any provision of this Indenture excludes any TIA provision
that may be so excluded, such TIA provision shall be excluded from this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.
Definitions
. Act, when used with respect to any Holder, has the
meaning specified in Section 104.
Additional Amounts has the meaning specified in Section 1011.
Adjusted Treasury Rate means, with respect to any date of redemption, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for that date of redemption.
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
purposes of this definition, control, as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms controlling, controlled by and under
common control with shall have correlative meanings.
Attributable Debt means, when used in respect of any Sale and Leaseback Transaction, as of
the time of determination, the total obligation (discounted to present value at the rate per annum
equal to the discount rate which would be applicable to a capital lease obligation with like term
in accordance with GAAP) of the lessee for rental payments (other than amounts required to be paid
on account of property taxes, maintenance, repairs, insurance, water rates and other items which do
not constitute payments for property rights) during the remaining portion of the initial term of
the lease included in such Sale and Leaseback Transaction.
Authenticating Agent means any Person appointed by the Trustee to act on behalf of the
Trustee pursuant to Section 611 to authenticate Securities.
Authorized Newspaper means a newspaper, in the English language or in an official language
of the country of publication, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Bearer Security means any Security except a Registered Security.
Board of Directors means (i) with respect to a corporation, the board of directors of the
corporation; (ii) with respect to a partnership, the Board of Directors of the
2
general partner of the partnership; and (iii) with respect to any other Person, the board or
committee of such Person serving a similar function.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, the Guarantor or a Subsidiary Guarantor, as the case may be, 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 means, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, unless otherwise specified with
respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment or other location
are authorized or obligated by law or executive order to close.
Clearstream means Clearstream, société anonyme, or its successor.
Commission or SEC means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at such time.
Common Depositary has the meaning specified in Section 304.
Company means the Person named as the Company in the first paragraph of this Indenture
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 one Officer of the Company and delivered to the Trustee.
Consolidated Current Liabilities means the aggregate of the current liabilities of Holdings
appearing on the most recent available consolidated balance sheet of Holdings, all in accordance
with GAAP. In no event shall Consolidated Current Liabilities include any obligation of Holdings
or its Subsidiaries issued under a revolving credit or similar agreement if the obligation issued
under such agreement matures by its terms within 12 months from the date thereof but by the terms
of such agreement such obligation may be renewed or extended or the amount thereof reborrowed or
refunded at the option of Holdings, the Company or any Subsidiary for a term in excess of 12 months
from the date of determination.
Consolidated Net Tangible Assets means Consolidated Tangible Assets after deduction of
Consolidated Current Liabilities.
Consolidated Tangible Assets means the aggregate of all assets of Holdings (including the
value of all existing Sale and Leaseback Transactions and any assets resulting from the
capitalization of other long-term lease obligations in accordance with GAAP) appearing on the most
recent available consolidated balance sheet of Holdings at their net book values, after deducting
related depreciation, applicable allowances and other properly deductible items,
3
and after deducting all goodwill, trademarks, tradenames, patents, unamortized debt discount
and expenses and other like intangibles, all prepared in accordance with GAAP.
Conversion Date has the meaning specified in Section 312(d).
Conversion Event means the cessation of use of a Foreign Currency both by the government of
one or more countries or by any recognized union, association or confederation of governments that
issued such currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions.
Corporate Trust Office of the Trustee means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be administered, which
office on the date of execution of this Indenture is located at 535
Griswold Street, Suite 550, Detroit, Michigan 48226, except that with respect to presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office or agency of the Trustee at
which, at any particular time, its corporate agency business shall be conducted.
corporation includes corporations, associations, companies and business or statutory trusts.
coupon means any interest coupon appertaining to a Bearer Security.
Currency means any currency, composite currency or currency unit, including, without
limitation, the Euro, issued by the government of one or more countries or by any recognized union,
confederation or association of such governments.
Debt has the meaning set forth in Section 1006.
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 307.
Depositary means, with respect to Registered Securities of any series, for which the Company
shall determine that such Registered Securities will be issued in permanent global form, The
Depository Trust Company, New York, New York, another clearing agency, or any successor registered
as a clearing agency under the Securities and Exchange Act of 1934, as amended (the Exchange
Act), or other applicable statute or regulations, which in each case, shall be designated by the
Company pursuant to Section 301.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public and private debts.
Dollar Equivalent of the Currency Unit has the meaning specified in Section 312(g).
4
Dollar Equivalent of the Foreign Currency has the meaning specified in Section 312(f).
Election Date has the meaning specified in Section 312(h).
Euro means the basic unit of currency among participating European Union countries, as
revised or replaced from time to time.
Euroclear means Euroclear Bank S.A./N.V. as operator of Euroclear System, and any successor
thereto.
European Union means the European Economic Community, the European Coal and Steel Community
and the European Atomic Energy Community, as may be modified from time to time.
Event of Default has the meaning specified in Section 501.
Exchange Date has the meaning specified in Section 304.
Exchange Rate Agent means, with respect to Securities of or within any series, unless
otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing
House bank, designated pursuant to Section 301 or Section 313.
Exchange Rate Officers Certificate means a certificate setting forth (i) the applicable
Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the relevant Currency),
payable with respect to a Security of any series on the basis of such Market Exchange Rate, signed
by the Treasurer or any Vice President of the Company.
Extension Notice has the meaning specified in Section 308.
Extension Period has the meaning specified in Section 308.
Federal Bankruptcy Code means the Bankruptcy Act of Title 11 of the United States Code, as
amended from time to time.
Foreign Currency means any Currency other than Currency of the United States.
Funded Debt means all Debt having a maturity of more than 12 months from the date as of
which the determination is made or having a maturity of 12 months or less but by its terms being
renewable or extendable beyond 12 months from such date at the option of the borrower, but
excluding any such Debt owed to the Company, the Guarantor or a Subsidiary.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards
5
Board or in such other statements by such other entity as have been approved by a significant
segment of the accounting profession which are in effect on the date of this Indenture.
Government Obligations means, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, securities which are (i) direct obligations of the government
which issued the Currency in which the Securities of a particular series are payable or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in either case, are full
faith and credit obligations of such government payable in such Currency and are not callable or
redeemable at the option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest or principal of the Government Obligation
evidenced by such depository receipt.
guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other obligations.
Guarantee means any guarantee of the Guarantor and, if applicable, any Subsidiary Guarantor,
endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the
Guarantees by the Guarantor set forth in Section 1601 and any Guarantees of any Subsidiary
Guarantor established in accordance with Section 301 and set forth in Section 1701.
Guarantor means the Person named as the Guarantor in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Guarantor shall mean such successor Person.
Guarantor Obligations shall have the meaning provided in Section 1601.
Guarantor Request or Guarantor Order means a written request or order signed in the name
of the Guarantor by one Officer of the Guarantor, and delivered to the Trustee.
Holder means, in the case of a Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, shall mean the bearer thereof.
Holdings means American Axle & Manufacturing Holdings, Inc., a Delaware Corporation.
6
Indebtedness means (1) any liability of any Person (a) for borrowed money, or (b) evidenced
by a bond, note, debenture or similar instrument (including purchase money obligations but
excluding Trade Payables), or (c) for the payment of money relating to a lease that is required to
be classified as a capitalized lease obligation in accordance with GAAP; (2) preferred or
preference stock of a Subsidiary of the Company held by Persons other than the Company or a
Subsidiary of the Company; (3) any liability of others described in the preceding clause (1) that
the Person has guaranteed, that is recourse to such Person or that is otherwise its legal
liability; and (4) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (1), (2) and (3) above.
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, and shall include the terms of particular series of Securities
established as contemplated by Section 301;
provided
,
however
, that, if at any time
more than one Person is acting as Trustee under this instrument, Indenture shall mean, with
respect to any one or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
Indexed Security means a Security the terms of which provide that the principal amount
thereof payable at the Stated Maturity may be more or less than the principal face amount thereof
at original issuance.
interest means, when used with respect to an Original Issue Discount Security the rate
prescribed in such Original Issue Discount Security.
Interest Payment Date means, when used with respect to any Security, the Maturity of an
installment of interest on such Security.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
Market Exchange Rate means, unless otherwise specified with respect to any Securities
pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and
Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into any
7
Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve
Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made from major banks
located in either New York City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified
with respect to any Securities pursuant to Section 301, in the event of the unavailability of any
of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or quotations from one or
more major banks in New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency
by reason of foreign exchange regulations or otherwise, the market to be used in respect of such
Currency shall be that upon which a non-resident issuer of securities designated in such Currency
would purchase such Currency in order to make payments in respect of such securities.
Maturity means, when used with respect to any Security, the date on which the principal of
such Security or any installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment, notice of exchange or conversion, or otherwise.
Mortgage means, with respect to any property or assets, any mortgage or deed of trust,
pledge, hypothecation, assignment, security interest, lien, encumbrance, or any other security
arrangement of any kind or nature whatsoever on or with respect to such property or assets
(including any conditional sale or other title retention agreement having substantially the same
economic effect as any of the foregoing).
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.
Officers Certificate means a certificate signed on behalf of the Company by two Officers of
the Company or the Guarantor, as the case may be, one of whom must be the principal executive
officer, the principal financial officer, the treasurer, or the principal accounting officer of the
Company, that meets the requirements of Section 102 hereof.
Operating Property means any real property or equipment located in the United States owned
by, or leased to, the Company, Holdings or any Subsidiary that has a market value in excess of 1.0%
of Consolidated Net Tangible Assets.
8
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company or
the Guarantor, as the case may be, including an employee of the Company or the Guarantor, and who
shall be acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding means, when used with respect to Securities, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment at
the option of the Holder money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company or the Guarantor (if the Company or the
Guarantor, as the case may be, shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect
to which the Company has effected defeasance and/or covenant defeasance as provided in
Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange Rate Officers
Certificate delivered to the Trustee, of the principal amount (or, in the case of an
9
Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of
any Indexed Security that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization, direction, notice, consent
or waiver or upon any such determination as to the presence of a quorum, 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 pledgees right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor.
Paying Agent means any Person (including the Company or the Guarantor acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any,
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 means, when used with respect to the Securities of or within any series,
the place or places (which, in the case of Bearer Securities, shall be outside the United States)
where the principal of (and premium, if any) and interest, if any, on such Securities are payable
as specified as contemplated by Sections 301 and 1002.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed,
lost or stolen coupon appertains, as the case may be.
Redemption Date, when used with respect to any Security to be redeemed, in whole or in part,
means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price means, when used with respect to any security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.
Registered Security means any Security registered in the Security Register.
Regular Record Date for the interest payable on any Interest Payment Date on the Registered
Securities of or within any series means the date specified for that purpose as contemplated by
Section 301.
10
Repayment Date means, when used with respect to any Security to be repaid at the option of
the Holder, the date fixed for such repayment pursuant to this Indenture.
Repayment Price means, when used with respect to any Security to be repaid at the option of
the Holder, the price at which it is to be repaid pursuant to this Indenture.
Responsible Officer means, when used with respect to the Trustee, any officer of the Trustee
within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) who has
direct responsibility for administration of this Indenture and, for purposes of Section 601 or
subparagraph (3)(b) of the first paragraph of Section 602 hereof, also includes any other officer
to whom such matter is referred because of such officers knowledge of and familiarity with the
particular subject.
Restricted Subsidiary means any Subsidiary (excluding the Company) that owns Operating
Property.
Sale and Leaseback Transaction means any arrangement with any Person providing for the
leasing to the Company, the Guarantor or any Subsidiary of any Operating Property, which Operating
Property has been or is to be sold or transferred by the Company, Holdings or such Subsidiary to
such Person.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture;
provided
,
however
, that if at any time there is more than one Person acting as
Trustee under this Indenture, Securities with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Senior Indebtedness means the principal of (and premium, if any) and unpaid interest on (x)
indebtedness of the Company (including indebtedness of others guaranteed by the Company), whether
outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money
borrowed other than (a) any indebtedness of the Company which when incurred and without respect to
any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to the
Company, (b) any Indebtedness of the Company to any of its subsidiaries, (c) Indebtedness to any
employee of the Company, (d) any liability for taxes and (e) Trade Payables, unless in the
instrument creating or evidencing the same or pursuant to which the same is outstanding it is
provided that such indebtedness is not senior or prior in right of payment to the Securities, and
(y) renewals, extensions, modifications and refundings of any such indebtedness. This definition
may be modified or superseded by a supplemental indenture.
Significant Subsidiary means any Subsidiary that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X of the Securities Act of 1933 as in effect on the
date of this Indenture.
11
Special Record Date for the payment of any Defaulted Interest on the Registered Securities
of or within any series means a date fixed by the Trustee pursuant to Section 307.
Stated Maturity has the meaning specified in Section 308.
Subsidiary means any corporation of which at least a majority of the outstanding stock
having by the terms thereof ordinary voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company, Holdings or by one or more other Subsidiaries, or by
the Company, Holdings and one or more other Subsidiaries.
Subsidiary Guarantor means with respect to the Securities of any series, any of AAM
International Holdings, Inc., AccuGear, Inc., Colfor Manufacturing, Inc., DieTronik, Inc., MSP
Industries Corporation, Oxford Forge, Inc. or such other Subsidiary as may from time to time
provide a Guarantee with respect to the Securities of a particular series pursuant to Section 301
and as set forth in Section 1701, until released from such Guarantee pursuant to the provisions of
this Indenture and the terms of such series of Securities.
Subsidiary Guarantor Request or Subsidiary Guarantor Order means a written request or
order signed in the name of the Subsidiary Guarantor by one Officer of the Subsidiary Guarantor,
and delivered to the Trustee.
Trade Payables means accounts payable or any other Indebtedness or monetary obligations to
trade creditors created or assumed in the ordinary course of business in connection with the
obtaining of materials or services.
Trust Indenture Act or TIA means the Trust Indenture Act of 1939 as in force at the date
as of which this Indenture was executed, except as provided in Section 905.
Trustee means the Person named as the Trustee in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder;
provided
,
however
, that if at any time there is more than one such
Person, Trustee as used with respect to the Securities of any series shall mean only the Trustee
with respect to Securities of that series.
United States means, unless otherwise specified with respect to any Securities pursuant to
Section 301, the United States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
United States person means, unless otherwise specified with respect to any Securities
pursuant to Section 301, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
12
Valuation Date has the meaning specified in Section 312(c).
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Voting Stock means stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
Yield to Maturity means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102.
Compliance Certificates and Opinions
. Upon any application or request
by the Company or the Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or condition provided
for in this Indenture (other than pursuant to Section 1004) 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
examination 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 covenant or
condition 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
13
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 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, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the Guarantor, as the case
may be, 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.
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
. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders
of the Outstanding Securities of all series or one or more series, as the case may be, may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of
such series voting in favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company or the Guarantor or to all of them. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the Act of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(a) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
14
capacity, such certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that the Trustee deems
sufficient.
(b) The principal amount and serial numbers of Registered Securities held by any Person, and
the date of holding the same, shall be proved by the Security Register.
(c) The principal amount and serial numbers of Bearer Securities held by any Person, and the
date of holding the same, may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to
it, the Bearer Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee, the Company, the Guarantor and the Subsidiary
Guarantors, as the case may be, may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
(d) If the Company or the Guarantor shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company or
the Guarantor, as the case may be, may, at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company or the Guarantor,
as the case may be, shall have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such Board Resolution, which shall
be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is completed. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(e) 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
15
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent, or the Company,
the Guarantor or the Subsidiary Guarantors, as the case may be, in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105.
Notices, etc. to Trustee, Company, the Guarantor or Subsidiary
Guarantors
. Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other documents 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, the Guarantor or any Subsidiary
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: James Kowalski, or
(2) the Company, the Guarantor or any Subsidiary 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 or by overnight delivery
service, to the Company, the Guarantor or such Subsidiary Guarantor, as the case may be,
addressed to it at the address of the Companys principal office specified in the first
paragraph of this Indenture, to the attention of its General Counsel, or at any other
address previously furnished in writing to the Trustee by the Company, the Guarantor or such
Subsidiary Guarantor, as the case may be.
SECTION 106.
Notice to Holders; Waiver
. Except as otherwise expressly provided
herein or otherwise specified with respect to any series of Securities pursuant to Section 301,
where this Indenture provides for notice of any event to Holders of Registered Securities by the
Company, the Guarantor or the Trustee, such notice shall be sufficiently given if in writing and
mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail service or by reason
of any other cause, it shall be impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any
Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and in such other
16
city or cities as may be specified in such Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given
on the date of such publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any published notice may be in
an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be 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.
SECTION 107.
Effect of Headings and Table of Contents
. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108.
Successors and Assigns
. All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 109.
Separability Clause
. In case any provision in this Indenture or in any
Security, any Guarantee or coupon shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110.
Benefits of Indenture
. Nothing in this Indenture or in the Securities,
the Guarantees or coupons, express or implied, shall give to any Person, other than the parties
hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors
hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION
111.
Governing Law
. THIS INDENTURE AND THE SECURITIES AND ANY COUPONS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS INDENTURE IS
SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE
17
PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112.
Legal Holidays
. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date or Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a provision in the Securities
of any series which specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date, Redemption Date Repayment
Date, sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be.
SECTION 113.
No Recourse
. No recourse for the payment of the principal of or
premium, if any, or interest on any Security or any coupons appertaining thereto, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any
Security or any coupons appertaining thereto, or because of the creation of any indebtedness
represented thereby, shall be had against any director, officer, employee, or stockholder as such,
past, present or future, of the Company or any of its Affiliates or any successor Person of the
Company, either directly or through the Company or any of its Affiliates or any successor Person of
the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Securities.
SECTION 114.
Incorporation by Reference of Trust Indenture Act
. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
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(i)
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indenture securities means the Securities;
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(ii)
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indenture security Holder means a Holder of a Security;
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(iii)
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indenture to be qualified means this Indenture;
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(iv)
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indenture trustee or institutional trustee means the Trustee; and
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(v)
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obligor on the Securities means the Company and if
applicable, the Guarantor and any Subsidiary Guarantor, in respect of the
Securities and any successor obligor upon the Securities.
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All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
SECTION 115.
Rules of Construction
. Unless the context otherwise requires:
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(I)
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a term has the meaning assigned to it;
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(II)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(III)
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or is not exclusive;
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(IV)
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words in the singular include the plural, and in the plural
include the singular; and
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(V)
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provisions apply to successive events and transactions.
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SECTION
116.
USA Patriot Act.
The parties hereto acknowledge that in
accordance with Section 326 of the USA Patriot Act the Trustee and the
Trust Officers, like all financial institutions and in order to help
fight the funding of terrorism and money laundering, are required to
obtain, verify, and record information that identifies each person or
legal entity that establishes a relationship or opens an account. The
parties to this agreement agree that they shall provide the Trustee
and the Trust Officers with such information as they may request in
order to satisfy the requirements of the USA Patriot Act.
ARTICLE TWO
SECURITY FORMS
SECTION 201.
Forms Generally
. The Registered Securities, if any, of each series and
the Bearer Securities, if any, of each series and related coupons the temporary global Securities
of each series, if any, and the permanent global Securities of each series, if any, and the
Guarantees, if any, to be endorsed thereon shall be in substantially the forms as shall be
established by, or pursuant to a Board Resolution or, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers Certificate pursuant to a Board Resolution of
the Company or, in the case of the Guarantees, the Guarantor and any Subsidiary Guarantors 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 as may,
consistently herewith, be determined by the officers of the Company, the Guarantor or the
Subsidiary Guarantors, as the case may be, executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the forms of Securities or coupons of any 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 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 or coupons. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall
have interest coupons attached.
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The Trustees certificate of authentication on all Securities shall be in substantially the
form set forth in this Article.
The definitive Securities and coupons, if any, including the Guarantees, if any, shall be
printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company or the Guarantor, as the case may be, executing
such Securities, coupons or Guarantees, as evidenced by their execution of such Securities, coupons
or Guarantees.
SECTION 202.
Form of Trustees Certificate of Authentication
. Subject to Section
611, the Trustees certificate of authentication shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U. S. Bank National Association,
as Trustee
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By:
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Authorized Officer
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SECTION 203.
Securities Issuable in Global Form
. If Securities of or within a
series are issuable in global form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Security in global form if such Security was never issued and sold by the
20
Company and the Company delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding any provisions of Section 307 to the contrary, unless otherwise specified as
contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on
any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the preceding
paragraph, the Company, the Guarantor and any Subsidiary Guarantor, if applicable, (if Guarantees
are issued) the Trustee and any agent of the Company, the Guarantor and any Subsidiary Guarantor,
if applicable (if Guarantees are issued), and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent global Security (i), in the
case of a permanent global Security in registered form, the Holder of such permanent global
Security in registered form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301.
Amount Unlimited; Issuable in Series
. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to
Section 303, set forth in, or determined in the manner provided in, an Officers Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any series, any or all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series and set forth in such Securities of
the series when issued from time to time):
(1) title of the Securities of the series (which shall distinguish the Securities of
the series from all other series of Securities) and whether such Securities are senior or
subordinated;
(2) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305 and except for
any Securities which, pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
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(3) the date or dates, or the method by which such date or dates will be determined or
extended, on which the principal of the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate or rates shall be determined, the date or dates from
which any such interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable, the right,
if any, of the Company to defer or extend an Interest Payment Date, and the Regular Record
Date, if any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates shall be determined, and the basis upon
which interest shall be calculated if other than on the basis of a 360-day year of twelve
30-day months;
(5) the place or places, if any, other than or in addition to the Borough of Manhattan,
The City of New York, where the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable (which in the case of Bearer Securities shall be
outside the United States), where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and, if different than the location
specified in Section 106, the place or places where notices or demands to or upon the
Company or, if applicable, the Guarantor in respect of the Securities of the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company or a Holder thereof, if the Company or
such Holder is to have that option;
(7) the obligation or right, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof, and the period or periods within which or the date or dates on
which, the price or prices at which, the Currency in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple thereof, the
denomination or denominations in which any Registered Securities of the series shall be
issuable and, if other than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar and/or Paying
Agent;
(10) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502, upon redemption of the Securities of the
22
series which are redeemable before their Stated Maturity, upon surrender for repayment
at the option of the Holder, or which the Trustee shall be entitled to claim pursuant to
Section 504 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of the series shall
be made or in which the Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(12) whether the amount of payments of principal of (or premium, if any) or interest,
if any, on the Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if any, on the
Securities of the series are to be payable, at the election of the Company or a Holder
thereof, in a Currency other than that in which such Securities are denominated or stated to
be payable, the period or periods within which (including the Election Date), and the terms
and conditions upon which, such election may be made, and the time and manner of determining
the exchange rate between the Currency in which such Securities are denominated or stated to
be payable and the Currency in which such Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any, or any depositaries;
(15) if Sections 1402 and/or 1403 are not applicable to the Securities of the series
and any provisions in modification of, in addition to or in lieu of any of the provisions of
Article Fourteen that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders of Securities of the
series upon the occurrence of such events as may be specified;
(17) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company or, if applicable, the Guarantor with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(18) if Securities of the series are not to be issuable solely as
Registered Securities, whether Securities of the series are to be issuable as Bearer Securities (with or without coupons) or both Registered
Securities and Bearer Securities, any restrictions applicable to the
offer, sale or delivery of Bearer Securities, whether such Securities of any series are to
be issuable initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and
23
denomination and the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, whether Registered Securities of the series may
be exchanged for Bearer Securities of the series (if permitted by applicable laws and
regulations), and the circumstances under which and the place or places where any such
exchanges may be made and if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(19) the date as of which any Bearer Securities of the series and any temporary global
Security representing Outstanding Securities shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304; and the extent to
which, or the manner in which any interest payable on a permanent global Security on an
Interest Payment Date will be paid if other than in the manner provided in Section 307;
(21) if Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, then the form
and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the exercise of warrants,
the time, manner and place for such Securities to be authenticated and delivered;
(23) whether, under what circumstances and the Currency in which the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of the series to any
Holder who is not a United States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) if the Securities of the series are to be convertible into or exchangeable for any
securities of any Person (including the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable;
(25) whether the Securities of the series are subject to subordination and, if so, the
terms of such subordination; and
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(26) if Securities of the series are not to be guaranteed by the Guarantor and any
modification of the terms of the Guarantees as set forth in Article Sixteen;
(27)
if Securities of the series are guaranteed by any Subsidiary
Guarantors and any deletions from, modifications to or additions to
Article Seventeen, the Events of Default or covenants with respect to such
Subsidiary Guarantors with respect to Securities of the series,
whether or not such changes are consistent with Article Seventeen, the
Events of Default or covenants set forth herein; and
(28) any other terms, conditions, rights and preferences (or limitations on such rights
and preferences) relating to the series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer Securities of such
series shall be substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to such Board Resolution or
pursuant to authority granted by one or more Board Resolutions (subject to Section 303) and set
forth in such Officers Certificate or in any such indenture supplemental hereto. Not all
Securities of any one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of additional Securities
of such series.
If any of the terms of the Securities of any series are established by action taken pursuant
to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions,
such Board Resolutions shall be delivered to the Trustee at or prior to the issuance of the first
Security of such series.
SECTION 302.
Denominations
. The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions with respect to the
Securities of such series, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series,
other than the Bearer Securities issued in global form (which may be of any denomination), shall be
issuable in the denomination of $5,000.
SECTION 303.
Execution, Authentication, Delivery and Dating
. The Securities and any
coupons appertaining thereto shall be executed on behalf of the Company by its Chairman, its
President or a Vice President, under its corporate seal affixed thereto or reproduced thereon
attested by its Secretary or an Assistant Secretary. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series together with any coupons
25
appertaining thereto, executed by the Company and (if Securities of such series were specified
as contemplated by Section 301 to be guaranteed by the Guarantor and any Subsidiary Guarantor)
having endorsed thereon Guarantees duly executed by the Guarantor and any Subsidiary Guarantor, as
applicable, to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities;
provided
,
however
, that, in connection
with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and
provided
further
that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may
be delivered in connection with its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this
Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security first becomes exchangeable for
such Bearer Security in accordance with the terms of such temporary Security and this Indenture.
If any Security shall be represented by a permanent global Bearer Security, then, for purposes of
this Section and Section 304, the notation of a beneficial owners interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance of such beneficial owners interest
in such permanent global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the Securities of any series are to be issued
at one time and if the Board Resolution, Officers Certificate pursuant to a Board Resolution, or
supplemental indenture establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and determining terms of
particular Securities of such series such as interest rate, maturity, date of issuance and date
from which interest shall accrue.
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 shall be
fully protected in relying upon, an Opinion of Counsel stating in effect (subject to customary
exceptions):
(a) that the form or forms of such Securities and any such Guarantees to be endorsed
thereon and any coupons have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, together with any Guarantees endorsed thereon and any coupons
appertaining thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the Company, the Guarantor, and
each of the Subsidiary Guarantors, as applicable, respectively, enforceable in accordance
with their terms, subject to the effect of any
26
applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors rights generally (including without limitation on all laws relating to
fraudulent transfers), to general principles of equity;
(d) that all laws and requirements in respect of the execution and delivery by the
Company, the Guarantor and the Subsidiary Guarantors, as applicable, of such Securities,
Guarantees, any coupons and of the supplemental indentures, if any, have been complied with
and that authentication and delivery of such Securities and any coupons and the execution
and delivery of the supplemental indenture, if any, by the Trustee will not violate the
terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities and any coupons,
and has duly taken all necessary corporate action with respect to such issuance;
(f) that the Guarantor and the Subsidiary Guarantors, as applicable, have the corporate
power to issue such Guarantees, and have taken all necessary corporate action with respect
to such issuance; and
(g) that the issuance of such Securities, Guarantees and any coupons will not
contravene the articles of incorporation or by-laws of the Company, the Guarantor or
Subsidiary Guarantors, as applicable, or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture, mortgage or other agreement known
to such Counsel by which the Company, the Guarantor or the Subsidiary Guarantors, as
applicable, are bound.
Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all
the Securities of any series are to be 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 the preceding two paragraphs prior to or at the time of
issuance of each Security, but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustees own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication and each Bearer
Security shall be dated as of the date specified as contemplated by Section 301.
No Security, no Guarantee endorsed thereon or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. The delivery of any
Security by the Trustee after the authentication thereof shall constitute due
27
delivery of any Guarantee endorsed thereon on behalf of the Guarantor and the Subsidiary
Guarantors, as applicable.
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 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304.
Temporary Securities
. Pending the preparation of definitive Securities
of any series, the Company may execute, 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, if applicable, having endorsed thereon Guarantees
duly executed by the Guarantor and the Subsidiary Guarantors, as applicable, substantially of the
tenor of the definitive Guarantees, in registered form or, if authorized, in bearer form with one
or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as conclusively the officers executing such Securities, Guarantees or coupons
may determine, as conclusively evidenced by their execution of such Securities, Guarantees or
coupons, as the case may be. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), 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 (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same series and of like
tenor of authorized denominations having, if applicable, endorsed thereon Guarantees duly executed
by the Guarantor and the Subsidiary Guarantors, as applicable;
provided
,
however
, that no
definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and
provided
further
that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such temporary global
Security shall, unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the Common Depositary), for the benefit of
28
Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary global Security (the Exchange Date), the Company
shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security and having, if applicable, endorsed thereon
Guarantees duly executed by the Guarantor and the Subsidiary Guarantors, as applicable, executed by
the Company. On or after the Exchange Date such temporary global Security shall be surrendered by
the Common Depositary to the Trustee, as the Companys agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be exchanged and, if
applicable, having endorsed thereon Guarantees duly executed by the Guarantor and the Subsidiary
Guarantors, as applicable. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner
thereof;
provided
,
however
, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion
of such temporary global Security held for its account then to be exchanged and a certificate dated
the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such
temporary global Security held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section
301); and
provided
further
that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with the requirements of
Section 303.
Unless otherwise specified in such temporary global Security, the interest of a beneficial
owner of Securities of a series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor and, if applicable, having endorsed thereon
Guarantees duly executed by the Guarantor and the Subsidiary Guarantors, as applicable following
the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be,
to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as
may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream,
the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
29
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee or the applicable Paying Agent of a
certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary global Security on such Interest Payment Date and who have
each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than
15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein contained, the certifications made
pursuant to this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive Securities of the
same series and of like tenor and, if applicable, having endorsed thereon Guarantees duly executed
by the Guarantor and the Subsidiary Guarantors, as applicable, on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or
premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such temporary global Security shall
have been exchanged for an interest in a definitive Security. Any interest so received by
Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee or the
applicable Paying Agent immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with (but otherwise subject to)
Section 1003.
SECTION 305.
Registration, Registration of Transfer and Exchange
. The Company or
the Trustee shall cause to be kept at the Corporate Trust Office of the Trustee a register for each
series of Securities (the registers maintained in the Corporate Trust Office of the Trustee 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 Registered Securities and of transfers
of Registered Securities;
provided
,
however
, that there shall be only one Security Register per
series of Securities. The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as
security registrar (the Security Registrar) for the purpose of registering Registered Securities
and transfers of Registered Securities as herein provided and for facilitating exchanges of
temporary global Securities for permanent global Securities or definitive Securities, or both, or
of permanent global Securities for definitive Securities, as herein provided.
30
Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor and, if applicable, having endorsed thereon Guarantees duly executed by
the Guarantor and the Subsidiary Guarantors, as applicable.
At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive, having, if applicable, endorsed thereon Guarantees duly
executed by the Guarantor and the Subsidiary Guarantors, as applicable. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment;
provided
,
however
, that, except as
otherwise provided in Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this Indenture.
31
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor and the Subsidiary Guarantors, as applicable.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent global Security shall be exchangeable only as provided in this paragraph. If any
beneficial owner of an interest in a permanent global Security is entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such beneficial owners interest in such
permanent global Security, executed by the Company and if applicable, having endorsed thereon
Guarantees duly executed by the Guarantor and the Subsidiary Guarantors, as applicable. On or
after the earliest date on which such interests may be so exchanged, such permanent global Security
shall be surrendered by the Common Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Companys agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and, if applicable, having endorsed thereon Guarantees
duly executed by the Guarantor and the Subsidiary Guarantors, as applicable, as the portion of
such permanent global Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided
,
however
, that no such
exchanges may occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security
for which exchange is requested may be among those selected for redemption; and provided, further,
that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may
be, in respect of such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same
32
benefits under this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
If at any time the Depositary for any permanent global Registered Securities of any series
notifies the Company that it is unwilling or unable to continue as Depositary for such permanent
global Registered Securities or if at any time the Depositary for such permanent global Registered
Securities shall no longer be eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such permanent global Registered
Securities. If a successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of the
Companys order for the authentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver such definitive Registered Securities of such
series and tenor, in any authorized denominations, in an aggregate principal amount equal to the
principal amount of such permanent global Registered Securities, in exchange for such permanent
global Registered Securities.
The Company may at any time and in its sole discretion determine that any permanent global
Registered Securities of any series shall no longer be maintained in global form. In such event
the Company will execute, and the Trustee, upon receipt of the Companys order for the
authentication and delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, definitive Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the principal amount of such
permanent global Registered Securities, in exchange for such permanent global Registered
Securities.
The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the selection for redemption of Securities of that series under Section 1103 or 1203 and
ending at the close of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in whole
33
or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to
exchange any Bearer Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so repaid.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer that may be imposed under this Indenture with respect to the
Securities of any series pursuant to the terms thereof established as contemplated by Section 301
or under applicable law with respect to any transfer of any interest in any such Security
(including any transfers between or among any depositary (including any Depositary or Common
Depositary), or its nominee, as a Holder of a Security issued in global form, any participants in
such depositary or owners or holders of beneficial interests in any such global Security) other
than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of such Securities if and as
may be so established in respect of such Securities, and to examine the same to determine
substantial compliance as to form with the express requirements thereof.
No
Depositary shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or ommission of the
Depositary.
SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities
. If any mutilated
Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a number not
contemporaneously Outstanding, and having, if applicable, endorsed thereon Guarantees duly executed
by the Guarantor and the Subsidiary Guarantors, as applicable, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, or, in case any such mutilated Security
or coupon has become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining
to the surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company, the Guarantor (if related Guarantees are issued)
and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to the Company, the
Guarantor or the Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously Outstanding, and having, if applicable, endorsed thereon Guarantees
duly executed by the Guarantor and the Subsidiary Guarantors, as applicable, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
34
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or
coupon;
provided
,
however
, that payment of principal of (and premium, if any) and interest, if any,
on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise specified as contemplated
by Section 301, any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, with any Guarantees endorsed thereon duly executed by the
Guarantor and the Subsidiary Guarantors, as applicable, and with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company and if applicable, the
Guarantor and the Subsidiary Guarantors, as applicable, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that series, any
Guarantees endorsed thereon and their coupons, if any, 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 or coupons.
SECTION 307.
Payment of Interest; Interest Rights Preserved; Optional Interest
Reset
. (a) Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest, if any, on any Registered 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 such Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002;
provided
,
however
, that each installment of
interest, if any, on any Registered Security may at the Companys option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 309, to the address of such Person as it appears on the Security Register or
(ii) transfer to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any
series, payment of interest, if any, may be made, in the case of a Bearer Security, by transfer to
an account located outside the United States maintained by the payee.
35
Any interest on any Registered Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date 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 and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest and, if applicable, interest
thereon herein collectively called Defaulted Interest) may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest that shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given in the manner provided 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 given, such Defaulted Interest shall be paid
to the Persons in whose name the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Registered Securities
of any series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any series of Securities
pursuant to Section 301 (with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
36
Optional Reset Date). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional
Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the Reset Notice) indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if
applicable) and (ii) the provisions, if any, for redemption during the period from such Optional
Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the
date of Maturity of such Security (each such period a Subsequent Interest Period), including the
date or dates on which or the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the
Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate
(or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such
notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional
Reset Date, and with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by the Company of the
principal of such Security on each Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308.
Optional Extension of Maturity
. The provisions of this Section 308 may
be made applicable to any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301). The Maturity of any
Security of such series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an Extension Period) up to but
37
not beyond the final maturity date of Maturity as set forth on the face of such Security (the
Stated Maturity). The Company may exercise such option with respect to any Security by notifying
the Trustee of such exercise at least 50 but not more than 60 days prior to the Maturity of such
Security in effect prior to the exercise of such option. If the Company exercises such option, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security
not later than 40 days prior to the Maturity a notice (the Extension Notice) indicating (i) the
election of the Company to extend the Maturity, (ii) the new Maturity, (iii) the interest rate, if
any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustees transmittal of the Extension Notice, the Maturity of such
Security shall be extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Security will have the same terms as prior to the transmittal
of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Maturity of such Security,
the Company may, at its option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest rate to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to which the Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will have the option to elect
repayment of such Security by the Company at Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment at Maturity once the
Company has extended the Maturity thereof, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior to the Maturity
and except that, if the Holder has tendered any Security for repayment pursuant to an Extension
Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Maturity.
SECTION 309.
Persons Deemed Owners
. Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Guarantor and any Subsidiary Guarantor (if
the Guarantee is endorsed on such Registered Security), the Trustee and any agent of the Company,
the Guarantor and any Subsidiary Guarantor (if the Guarantee is endorsed on such Registered
Security), or the Trustee may treat the Person in whose name such Registered Security is registered
as the absolute owner of such Registered Security for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Guarantor or any Subsidiary Guarantor (if a Guarantee is endorsed on such Registered
Security), the Trustee or any agent of the Company, the Guarantor or any Subsidiary Guarantor (if a
Guarantee is endorsed on such Registered Security), or the Trustee shall be affected by notice to
the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Guarantor and any Subsidiary Guarantor (if a Guarantee is endorsed on such Bearer
Security), the Trustee and any agent of the Company, the Guarantor and any Subsidiary Guarantor (if
a Guarantee is endorsed on such Bearer Security), or the Trustee may
38
treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of
such Security or coupon for the purpose of receiving payment thereof or on account thereof and for
all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Guarantor or any Subsidiary Guarantor (if a Guarantee is endorsed on such Bearer
Security), the Trustee or any agent of the Company, the Guarantor or any Subsidiary Guarantor (if a
Guarantee is endorsed on such Bearer Security), or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Guarantor, any Subsidiary Guarantor, as applicable, the Trustee, any
Paying Agent or the Security Registrar shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. The Company, the Guarantor, the Subsidiary Guarantors, as applicable, the
Trustee and the Securities Registrar shall be entitled to deal with any depositary (including any
Depositary or Common Depositary), and any nominee thereof, that is the Holder of any such global
Security for all purposes of this Indenture relating to such global Security (including the payment
of principal, premium, if any, and interest and Additional Amounts, if any, the giving of
instructions or directions by or to the owner or holder of a beneficial ownership interest in such
global Security) as the sole Holder of such global Security and shall have no obligations to the
beneficial owners thereof. None of the Company, the Guarantor, the Subsidiary Guarantors, as
applicable, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility
or liability for any acts or omissions of any such depositary with respect to such global Security,
for the records of any such depositary, including records in respect of beneficial ownership
interests in respect of any such global Security, for any transactions between such depositary and
any participant in such depositary or between or among any such depositary, any such participant
and/or any holder or owner of a beneficial interest in such global Security or for any transfers of
beneficial interests in any such global Security.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall
prevent the Company, the Guarantor, the Subsidiary Guarantors, as applicable, the Trustee, or any
agent of the Company, the Guarantor, the Subsidiary Guarantors, as applicable, or the Trustee, from
giving effect to any written certification, proxy or other authorization furnished by any
depositary (including any Depositary or Common Depositary), as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial interests in such
global Security, the operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 310.
Cancellation
. All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or exchange or for
credit against any current or future sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the
Trustee shall be promptly cancelled by it. The Company, the Guarantor or the Subsidiary Guarantors
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company, the Guarantor or such Subsidiary Guarantors, as the case may
be, 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
39
any Securities previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company, the
Guarantor or any Subsidiary Guarantor shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and, if requested by the Company in writing, certification of their
disposal delivered to the Company, unless by Company Order the Company shall timely direct that
cancelled Securities be returned to it.
SECTION 311.
Computation of Interest
. Except as otherwise specified as contemplated
by Section 301 with respect to Securities of any series, interest, if any, on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312.
Currency and Manner of Payments in Respect of Securities
. (a) Unless
otherwise specified with respect to any series of Securities pursuant to Section 301, with respect
to Registered Securities of any series not permitting the election provided for in paragraph (b)
below or the Holders of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment
of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer
Security of such series will be made in the Currency in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 312 may be modified or
superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any
series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in
any of the Currencies which may be designated for such election by delivering to the Trustee a
written election with signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder until changed by
such Holder or such transferee by written notice to the Trustee (but any such change must be made
not later than the close of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no such change of election
may be made with respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to elect repayment has been sent by
such Holder or such transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the relevant Currency
as provided in
40
Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election referred to in
paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified
pursuant to Section 301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered Securities of such series
are payable, the respective aggregate amounts of principal of (and premium, if any) and interest,
if any, on the Registered Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to which the Holders of
Registered Securities of such series shall have elected to be paid in another Currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise
specified pursuant to Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered Securities an Exchange Rate
Officers Certificate in respect of the Dollar or Foreign Currency payments to be made on such
payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency
amount receivable by Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis of the applicable
Market Exchange Rate in effect on the third Business Day (the Valuation Date) immediately
preceding each payment date, and such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of principal of (and premium,
if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used (the Conversion
Date), the Dollar shall be the Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided
in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security
denominated in any Currency shall have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been made in the absence
of such election; and if a Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall receive payment in Dollars
as provided in paragraph (d) above.
41
(f) The Dollar Equivalent of the Foreign Currency shall be determined by the Exchange Rate
Agent and shall be obtained for each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The Dollar Equivalent of the Currency Unit shall be determined by the Exchange Rate
Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained
by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have the following meanings:
A Component Currency shall mean any Currency which, on the Conversion Date, was a
component currency of the relevant currency unit, including, but not limited to, the Euro.
A Specified Amount of a Component Currency shall mean the number of units of such
Component Currency or fractions thereof which were represented in the relevant currency
unit, including, but not limited to, the Euro, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single Currency equal to the sum
of the respective Specified Amounts of such consolidated Component Currencies expressed in
such single Currency, and such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the Euro, a Conversion Event (other than any event referred
to above in this definition of Specified Amount) occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in
effect on the Conversion Date of such Component Currency.
Election Date shall mean the date for any series of Registered Securities as
specified pursuant to clause (13) of Section 301 by which the written election referred to
in paragraph (b) above may be made.
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All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of
the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the Company and the
Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Conversion Event has occurred
with respect to a Foreign Currency, the Company will immediately give written notice thereof to the
Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the
manner provided for in Section 106 to the affected Holders) specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has occurred with respect to the Euro or
any other currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Company determines in good faith that any
subsequent change in any Component Currency as set forth in the definition of Specified Amount
above has occurred, the Company will similarly give written notice to the Trustee and the Exchange
Rate Agent. The Trustee shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate Agent and shall not otherwise
have any duty or obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 313.
Appointment and Resignation of Successor Exchange Rate Agent
. (a)
Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series
(i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other
than Dollars, or so long as it is required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of Securities, or as so required, at least
one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for
the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of
converting the issued Currency into the applicable payment Currency for the payment of principal
(and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate
Agent pursuant to this Section shall become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents
43
with respect to the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all
of such series and that, unless otherwise specified pursuant to Section 301, at any time there
shall only be one Exchange Rate Agent with respect to the Securities of any particular series that
are originally issued by the Company on the same date and that are initially denominated and/or
payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401.
Satisfaction and Discharge of Indenture
. This Indenture shall upon
Company Request cease to be of further effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto, and any right to
receive Additional Amounts, as contemplated by Section 1011) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as provided
in Section 305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company, the Guarantor or the
Subsidiary Guarantors, as the case may be, and thereafter repaid to the Company, the
Guarantor or the Subsidiary Guarantors, 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 Securities of such series and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
44
(iii) if redeemable at the option of the Company, 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, in the case of (i), (ii) or (iii) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount in the Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 606, the obligations of the Trustee to any Authenticating
Agent under Section 611 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 and
the last paragraph of Section 1003, the last sentence of Section 1011, and the penultimate
paragraph of Section 1405 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, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company, the Guarantor or any Subsidiary Guarantor, as applicable, acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required by law. Money so
held in trust is subject to the Trustees rights under Section 606.
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
45
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 on any Security of that series, or any
related coupon, when such interest or coupon becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of
the Securities of that series and Article Twelve; or
(4) default in the performance, or breach, of any covenant or agreement of the Company
or the Guarantor in this Indenture which affects or is applicable to the Securities of that
series (other than a default in the performance or breach of a covenant or agreement is
elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of other series of Securities), and continuance of
such default or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of all 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 Guarantee, if any, applicable to the Securities of that series, ceases
to be in full force and effect or a Holdings Guarantee is declared null and void or the Guarantor denies that it
has any further liability under its Guarantee to the Holders of Securities of that series,
or has given notice to such effect (other than by reason of the release of any such
Guarantee in accordance with this Indenture), and such condition shall have continued for
period of 30 days after written notice to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities
of that series; or
(6) default in the payment of principal when due or resulting in acceleration of other
Indebtedness of the Company, or, if Guarantees are issued, the Guarantor, or any Significant
Subsidiary for borrowed money where the aggregate principal amount with respect to which the
default or acceleration has occurred exceeds $100 million and such acceleration has not been
rescinded or annulled or such Indebtedness repaid within a period of 30 days after written
notice to the Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of all Outstanding Securities;
provided
that if any
such default is cured, waived, rescinded or annulled, then the Event of Default by reason
thereof would be deemed not to have occurred; or
46
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or, if a Holdings
Guarantee is issued, the Guarantor in an involuntary case or proceeding under Bankruptcy Law
or (B) a decree or order adjudging the Company or, if a
Holdings Guarantee is issued, 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, if a Holdings Guarantee is
issued, 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, if a Holdings Guarantee is issued, the Guarantor or
of any substantial part of their property, or ordering the winding up or liquidation of
their 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
(8)
the commencement by the Company or, if Guarantees are issued, the Guarantor of a voluntary case or proceeding under Bankruptcy Law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
them to the entry of a decree or order for relief in respect of the Company or, if Guarantees are issued, the Guarantor is an involuntary case or
proceeding under Bankruptcy Law or to the commencement of any bankruptcy or insolvency case
or proceeding against them, or the filing by them of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the consent by them
to the filing of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or, if Guarantees are issued, the Guarantor or of any
substantial part of their property, or the making by them of an assignment for the benefit
of creditors, or the admission by them in writing of their inability to pay their debts
generally as they become due; or
(9) there occurs any other Event of Default provided pursuant to Section 301 or 901
with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment
. If an Event of
Default described in clause (1), (2), (3), (4), (5), (6) or (9) of Section 501 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 (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Outstanding Securities of that series and any
accrued and unpaid cash interest through the date of such declaration, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
(or of all series, as the case may be) has been made and before a judgment or decree
47
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 (or of all series, as the case may be) by written notice to the Company, the Guarantor, if
applicable, and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the
Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding Securities of that series
(or of all series, as the case may be) and any related coupons,
(B) all unpaid principal of (and premium, if any) any Outstanding Securities of
that series (or of all series, as the case may be) which has become due otherwise
than by such declaration of acceleration, and interest on such unpaid principal at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is enforceable under applicable
law, interest upon overdue interest to the date of such payment or deposit at the
rate or rates prescribed therefor in such Securities or, if no such rate or rates
are so prescribed, at the rate borne by the Securities during the period of such
default, 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 (or of all series,
as the case may be), other than the non-payment of the principal of (or premium, if any, on)
Securities of that series (or of all series, as the case may be) which have become due
solely by such declaration of acceleration, have been cured or waived as provided in Section
513.
If an Event of Default described in clause (7) or (8) occurs and is continuing, then the principal
amounts (or, if the Securities of that series are Original Issue Discount Securities or Indexed
Securities, such position of the principal amount as may be specified in the terms of that series)
of all the Securities and then Outstanding, together with any accrued interest through the
occurrence of such Event of Default, shall become and be due and payable immediately, without any
declaration or other act by the Trustee or any other Holder.
SECTION 503.
Collection of Indebtedness and Suits for Enforcement by Trustee
. The
Company covenants that (1) in case default shall be made in the payment of any installment of
interest on any Security of any series and any related coupon, as and when the same shall become
due and payable, and such default shall have continued for a period of 90 days, or (2) in case
default shall be made in the payment of the principal (or premium, if any, on) any Security of any
series at its Maturity and such default shall have continued for a period of five Business Days
then, upon demand of the Trustee, the Company will pay to the Trustee (such
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demand and payment in the case of Bearer Securities to occur only outside of the United
States, for the benefit of the Holders of Securities of such series and coupons, the whole amount
that then shall have become due and payable on such Securities and coupons of that series for
principal and any premium or interest, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate borne by or provided for in such Securities
during the period of such default; and, in addition thereto, such further amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the Trustee except as a
result of its negligence or bad faith.
If an Event of Default with respect to Securities of any series (or of all series, as the case
may be) 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 (or of all series, as the
case may be) and any related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504.
Trustee May File Proofs of Claim
. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, the Guarantor or any Subsidiary
Guarantor (if any related Guarantees are issued) or any other obligor upon the Securities of a
series or the property of the Company, the Guarantor or any Subsidiary Guarantor (if any related
Guarantees are issued) or of such other obligor or their creditors, the Trustee, irrespective of
whether the principal of the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company or, if applicable, the Guarantor or any Subsidiary Guarantor for the
payment of any overdue principal, premium, if any, or interest, shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (and premium, if any)
(or if the case of Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of such series) and interest, if any,
owing and unpaid in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same (which distribution, in the case of Bearer Securities
or coupons appertaining thereto, shall occur only outside the United States);
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
49
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 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities
. All
rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506.
Application of Money Collected
. Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal or any premium and
interest, upon presentation of the Securities or coupons, or both, as the case may be (such
presentation, in the case of Bearer Securities or coupons, to occur only outside the United States)
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
First: To the payment of all amounts due the Trustee under Section 606;
Second: To the payment (such payment, in the case of Bearer Securities or coupons, to
occur only outside the United States) of the amounts then due and unpaid for principal of
and any premium and interest on the Securities and coupons 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 and coupons for
principal and any premium and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company, or as a court of
competent jurisdiction may direct in writing.
SECTION 507.
Limitation on Suits
. No Holder of any Security of any series or any
related coupons 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 shall have previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
50
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in clause (1), (2), (3), (4),
(5) or (9) of Section 501, or, in the case of any Event of Default described in clause (6),
(7) or (8) of Section 501, the Holders of not less than 25% in principal amount of all
Outstanding Securities, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee reasonable indemnity
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 shall have failed to institute any such proceeding; and
(5) no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 512 during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series, in the case of any
Event of Default described in clause (1), (2), (3), (4), (5) or (9) of Section 501, or, in
the case of any Event of Default described in clause (6), (7) or (8) of Section 501 by the
Holders of a majority or more in principal amount of all Outstanding Securities;
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 Holders of Securities of the same series, in the case of any
Event of Default described in clause (1), (2), (3), (4), (5) or (9) of Section 501, or of Holders
of all Securities in the case of any Event of Default described in clause (6), (7) or (8) of
Section 501, 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 and common benefit of all of such Holders of Securities of that same series
in the case of any Event of Default described in clause (1), (2), (3), (4), (5) or (9) of Section
501, or of Holders of all Securities in the case of any Event of Default described in clause (6),
(7) or (8) of Section 501.
SECTION 508.
Unconditional Right of Holders to Receive Principal, Premium and
Interest
. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment as provided herein
and in such Security of the principal and any premium and interest on such Security or payment of
any related coupon on the respective Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption or repayment at the option of the Holder, on the Redemption
Date or Repayment Date, as the case may be) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509.
Restoration of Rights and Remedies
. If the Trustee or any Holder 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
51
adversely to the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Subsidiary Guarantors, 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 replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in
Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
of Securities and coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511.
Delay or Omission Not Waiver
. No delay or omission of the Trustee or
of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512.
Control by Holders
. With respect to the Securities of any series, the
Holders of not less than a majority in principal amount of the Outstanding Securities of such
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
relating to or arising under clause (1), (2), (3), (4), (5) or (9) of Section 501 and, with respect
to all Securities;
provided
,
however
, the Holders of not less than a majority in principal amount
of all Outstanding Securities 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, not relating to or arising under clause (1), (2), (3), (4), (5) or (9) of
Section 501:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of Holders of Securities of
such series not taking part in such direction, and
(4) such direction would not involve the Trustee in personal liability, as the Trustee,
upon being advised by counsel, shall reasonably determine.
SECTION 513.
Waiver of Past Defaults
. Subject to Section 502, the Holders of not
less than a majority in principal amount of Outstanding Securities of any series may on
52
behalf of the Holders of all the Securities of such series waive any past default
described in clause (1), (2), (3), (4), (5) or (9) of Section 501 (or, in the case of
a default described in clause (6), (7) or (8) of Section 501, the Holders of not less than a
majority in principal amount of all Outstanding Securities may waive any such past default),
hereunder with respect to such series and its consequences, except a default:
(1) in respect of the payment of the principal of or any premium and interest on any
Security or any related coupon, 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, any 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, and the Company,
the Trustee and Holders shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 514.
Undertaking for Costs
. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Security, or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium if any, on) or interest on any Securities on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515.
Waiver of Stay or Extension Laws
. Each of the Company and the
Guarantor covenants (to the extent that each 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
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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601.
Notice of Defaults
. Within 90 days after the occurrence of any Default
hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such default hereunder known to a
Responsible Officer of the Trustee, unless such Default shall have been cured or waived;
provided
,
however
, that, except in the case of a Default in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of Securities of such series
and any related coupons; and
provided
further
that in the case of any default or
breach of the character specified in Section 501(4) with respect to Securities and coupons of such
series, no such notice to Holders shall be given until at least 30 days after the occurrence
thereof.
SECTION 602.
Certain Duties, Responsibilities and Rights of Trustee
. Subject to the
provisions of TIA Sections 315(a) through 315(d):
(1) except during the continuance of an Event of Default,
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(a)
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the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
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(b)
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in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture;
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(2) if any Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of such persons
own affairs;
(3) the Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
54
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(a)
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this subparagraph (3) does not limit the effect
of subparagraph (1) of this paragraph or the penultimate paragraph of
this Section 602;
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(b)
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the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
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(c)
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the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of the affected series relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;
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(4) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, 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;
(5) any request or direction of the Company, the Guarantor or any Subsidiary Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or Company Order,
Guarantor Request or Guarantor Order, or Subsidiary Guarantor Request or Subsidiary
Guarantor Order, as the case may be, and any resolution of the Board of Directors of the
Company, the Guarantor or any Subsidiary Guarantor may be sufficiently evidenced by a Board
Resolution;
(6) 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, conclusively rely upon an Officers Certificate;
(7) the Trustee may consult with counsel 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;
(8) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders of
Securities of any series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(9) 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,
55
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 books, records and premises of the Company or, if any Guarantees are issued,
the Guarantor, personally or by agent or attorney;
(10) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents, attorneys, custodians, or nominees
and the Trustee shall not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian, or nominee appointed with due care by it hereunder;
(11) the Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(12) in the event that the Trustee is also acting as Paying Agent, Security Registrar
or in any other capacity hereunder, the rights, privileges, protections, immunities and
benefits afforded to the Trustee pursuant to this Article Six, including, without
limitation, its right to be indemnified, shall also be afforded to the Trustee in its
capacity as such Paying Agent, Security Registrar or in such other capacity;
(13) the Trustee shall not be deemed to know or be charged with knowledge of any
Default or Event of Default with respect to the Securities of any series for which it is
acting as Trustee unless a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office of the Trustee from the Company or a Holder of
such Securities and such notice references this Indenture and such
Securities;
(14) the Trustee shall not be required to give any note, bond or surety in
respect of the trusts and powers under this Indenture;
(15)
in no event shall the Trustee be responsible or liable for special,
indirect, or
consequential loss or damage of any kind whatsoever (including, but
not limited to loss of profit) irrespective of whether the Trustee
has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(16)
in no event shall the Trustee be responsible or liable for any
failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond
its control including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer
(software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which
are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.
The Trustee shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured to it.
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 602.
SECTION 603.
Trustee Not Responsible for Recitals or Issuance of Securities
. The
recitals contained herein and in the Securities, including any Guarantees endorsed thereon, except
for the Trustees certificates of authentication, and in any coupons shall be taken as the
statements of the Company, the Guarantor or the Subsidiary Guarantors, as the case may be, and
neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that
the statements made by it in a Statement of Eligibility on Form T-1
56
supplied to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604.
May Hold Securities
. The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, the Guarantor, or any Subsidiary
Guarantor or of the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal
with the Company, the Guarantor and any Subsidiary Guarantors with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 605.
Money Held in Trust
. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed
with the Company or the Guarantor, as the case may be, for the investment thereof.
SECTION 606.
Compensation and Reimbursement
. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its gross negligence or
willful misconduct; and
(3) to indemnify the Trustee and any predecessor trustee and its and their
officers, directors, employees, and agents for, and to hold it or them harmless against,
any loss, liability or expense incurred without gross negligence or willful misconduct
on its or their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses
(including reasonable fees and expenses of counsel) of defending itself or themselves
against any claim or liability in connection with the exercise or performance of any of
its or their powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee, to pay or
reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless
the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture, the resignation or removal of the Trustee and the termination of
this Indenture for any reason. As security for the performance of such obligations of the Company,
the Trustee shall have a claim and lien prior to the Securities upon all property
57
and funds held or collected by the Trustee as such, except funds held in trust for the payment
of principal of (or premium, if any) or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(7) or (8), the expenses (including reasonable charges and expense of its
counsel) of and the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the satisfaction and discharge of this Indenture,
the termination of this Indenture for any reason and the earlier resignation or removal of the
Trustee.
SECTION 607.
Corporate Trustee Required; Eligibility; Conflicting Interests;
Disqualification
. There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of Federal, State, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this Indenture. For purposes of Section
310(b)(1) of the Trust Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in respect of the Securities of any other
series. Nothing contained herein shall prevent the Trustee from filing the application provided
for in the second to last sentence of Section 310(b) of the Trust Indenture Act.
SECTION 608.
Resignation and Removal; Appointment of Successor
. (a) No resignation
or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 609 and any and all amounts then due and owing to the
Trustee hereunder have been paid in full.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company and, if applicable the Guarantor. If the instrument
of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of not less than a majority in principal amount of the
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Outstanding Securities of such series, delivered to the Trustee and to the Company and, if
applicable, the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company, 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 607 and shall fail to resign
after written request therefor by the Company, the Guarantor or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), 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.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, 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). 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 retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner hereinafter
provided, 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.
(f) 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 the Holders of Securities of such series in
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the manner provided for in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609.
Acceptance of Appointment by Successor
. 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, the Guarantor, the Subsidiary
Guarantors, if applicable, 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, any Subsidiary Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim and lien provided for in Section 606.
(a) 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 and the Subsidiary Guarantors, as
applicable, 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 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, subject nevertheless to its claim and lien provided for in Section 606. Whenever
there is a successor Trustee with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms Indenture and Securities shall have the meanings
specified in the provisos to the respective definitions of those terms in Section 101 which
contemplate such situation.
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(b) Upon request of any such successor Trustee, the Company and, if applicable, the Guarantor
and any Subsidiary Guarantors, as applicable, shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
SECTION 610.
Merger, Conversion, Consolidation or Succession to Business
. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Securities or
coupons shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities or coupons. In case any of the
Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may
authenticate and deliver such Securities or coupons either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates shall have the full
force and effect which this Indenture provides for the certificate of authentication of the
Trustee;
provided
,
however
, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or consolidation.
SECTION 611.
Appointment of Authenticating Agent
. At any time when any of the
Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents 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 and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be
promptly furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a 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
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state authority. If such corporation 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 corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to 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. 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. 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 shall give
written notice of such appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. 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 606.
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 Trustees certificate of
authentication, an alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U. S. Bank National Association,
as Trustee
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By
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as Authenticating Agent
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By
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Authorized Officer
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701.
Disclosure of Names and Addresses of Holders
. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the Company, the Guarantor,
the Subsidiary Guarantors, as applicable, and the Trustee that none of the Company, the Guarantor,
the Subsidiary Guarantors, as applicable, or the Trustee or any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702.
Reports by Trustee
. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided
in TIA Section 313(c), a brief report dated as of such May 15 if required by TIA Section 313(a).
The Company will promptly notify the Trustee when any series of Securities are listed on any stock
exchange and of any delisting thereof.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange if any, upon which the Securities are listed, with the Company and
the Guarantor.
SECTION 703.
Reports by Company
. The Company and so long as any Securities in
respect of which Guarantees are Outstanding, the Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or the Guarantor, as the
case may be, has filed the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe) which the
Company or the Guarantor, as the case may be, may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company or the Guarantor, as the case may be, is not required to file information, documents
or reports pursuant to either of such Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of
a security listed and
63
registered on a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company or the Guarantor, as the case may be, with
the conditions and covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent provided in TIA Section
313(c), within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company or the Guarantor, as
the case may be, pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801.
Company and Guarantor May Consolidate, etc., Only on Certain Terms
.
The Company or the Guarantor may not consolidate with or merge into any other Person or convey,
transfer or lease their properties and assets substantially as an entirety to any Person, unless:
(1) The successor or transferee Person, if other than the Company or the Guarantor, as
the case may be) formed by such consolidation or into which the Company is merged is a
corporation organized and existing under the laws of the United States, any state thereof or
the District of Columbia and expressly assumes by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on each series of Outstanding
Securities and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed by the Company or the Guarantor, as the case may be;
(2) immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or lapse of time or both, would become an Event of Default shall
have occurred and be continuing; and
(3) the Company or the Guarantor, as the case may be, has delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that such
64
consolidation, merger, conveyance or transfer 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 Person Substituted
. Upon any consolidation by the Company or
the Guarantor with or merger by the Company or the Guarantor, as the case may be, with or into any
other corporation or any conveyance, transfer or lease of the properties and assets of the Company
or the Guarantor, as the case may be, substantially as an entirety to any Person in accordance with
Section 801, the successor Person formed by such consolidation or into which the Company 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, and be subject to every obligation of, the Company or
the Guarantor, as the case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the case may be, herein, and in the event
of any such conveyance or transfer, the Company or the Guarantor, as the case may be (which terms
shall for this purpose mean the Person named as the Company or the Guarantor, as the case may
be, in the first paragraph of this Indenture or any successor Person which shall theretofore become
such in the manner described in Section 801), except in the case of a lease, shall be discharged of
all obligations and covenants under this Indenture and the Securities and any coupons appertaining
thereto, or the Guarantees, as the case may be, and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders
. Without the
consent of any Holders, the Company and if applicable, the Guarantor and any Subsidiary Guarantors,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the Guarantor and
the assumption by any such successor of the covenants of the Company or the Guarantor, as
the case may be contained herein and in the Securities and the Guarantees in accordance with
Article Eight; 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 any related coupons (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants
are 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 any related coupons (and if such Events of Default are to
65
be for the benefit of less than all series of Securities, stating that such Events of
Default are being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized denominations
or to permit or facilitate the issuance of Securities in uncertificated form; provided that
any such action shall not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture; provided that any
such change or elimination shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of Section 1009 or otherwise;
or
(7) to establish the form or terms of Securities of any series and any related coupons
as permitted by Sections 201 and 301, including the form or terms of any Subsidiary
Guarantors Guarantee of the Securities and/or the provisions and procedures relating to
Securities convertible into or exchangeable for any securities of any Person (including the
Company or Guarantor); or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 609(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture; provided such action shall not
adversely affect the interests of the Holders of Securities of any series and any related
coupons in any material respect;
(10) to add any guarantors with respect to the Securities of any series; or
(11) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series and any related coupons or
any other series of Securities in any material respect.
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SECTION 902.
Supplemental Indentures with Consent of Holders
. With the consent of
the Holders of not less than a majority in principal amount of all Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, and, if applicable, the Guarantor and any Subsidiary Guarantor when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture which affect such series of
Securities 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,
(1) change the Stated Maturity of the principal of (or premium, if any) or any
installment of principal of or interest on any Security of such series; or the terms of any
sinking fund with respect to any Security; or reduce the principal amount thereof (or
premium, if any) or the rate of interest, if any, thereon, or any premium payable upon the
redemption thereof, or repayment thereof, or repayment thereof at the option of the Holder,
or change any obligation of the Company to pay Additional Amounts contemplated by Section
1011 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security of such series that would
be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or upon the redemption thereof, or the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at the option of any
Holder of any Security of such series, or change any Place of Payment where, or the Currency
in which, any Security of such series 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 or repayment at the option of the
Holder, on or after the Redemption Date or Repayment Date, as the case may be), or modify
the provisions of this Indenture with respect to the mandatory redemption of Securities or
repayment of the securities at the option of the Holder in a manner adverse to any Holder of
any Securities or any coupons appertaining thereto, adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, for
any waiver of compliance with certain provisions of this Indenture which affect such series
or certain defaults applicable to such series hereunder and their consequences provided for
in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section or Section 513, except to increase any
such percentage or to provide that certain other provisions of this Indenture which affect
such series cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
67
(4) reduce the terms and conditions of any obligations of the Guarantor in respect of
the due and punctual payment of the principal of and premium, if any, and interest, if any,
on any Security of such 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.
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 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
Trustees 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 and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905.
Conformity with Trust Indenture Act
. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
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 shall if required by the Company, bear a notation as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee,
the Company and, if applicable, the Guarantor, to any such supplemental indenture may be prepared
and executed by the Company having, if applicable, Guarantees endorsed thereon and executed by the
Guarantor and the Subsidiary Guarantors, if applicable, and authenticated and delivered (which
delivery, in the case of Bearer Securities, shall occur only outside the United States) by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907.
Notice of Supplemental Indentures
. Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the Company shall give notice thereof to the Holders of each Outstanding Security affected, in the
manner provided for in Section 106, setting forth in general terms the substance of such
supplemental indenture.
SECTION 908.
Effect on Senior Indebtedness
. No supplemental indenture shall
adversely affect the rights of any holder of Senior Indebtedness without the consent of such
holder.
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ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium, if Any, and Interest
. The Company
covenants and agrees for the benefit of the Holders of each series of Securities and any related
coupons 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, any coupons appertaining
thereto and this Indenture. Unless specified as contemplated by Section 301 with respect to any
series of Securities, any interest installments due on Bearer Securities on or before Maturity
shall be payable only upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002.
Maintenance of Office or Agency
. If the Securities of a series are
issuable only as Registered Securities, the Company will maintain in each Place of Payment for any
series of Securities an office or agency where the Securities may be presented or surrendered for
payment, where the Securities may be surrendered for registration of transfer or exchange, where
Securities of that series that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the Company in respect of the
Securities 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 except that Bearer Securities of any series
and related coupons may be presented and surrendered for payment only outside the United States, at
the offices specified in the Security, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands. Unless otherwise specified with
respect to any Securities as contemplated by Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of Securities the office or
agency of the Trustee in the Borough of Manhattan, The City of New York, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment
of principal, premium or interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United States or by transfer
to an account maintained with a bank located in the United States;
provided
,
however
, that, if the
Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and
interest, if any, on any Bearer Security shall be made at the office of the Companys Paying Agent
in The City of New York, if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside the United States
maintained for such purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
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
69
all such purposes and may from time to time rescind any such designation;
provided
,
however
, that no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities as contemplated by
Section 301 with respect to a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii)
may be payable in a Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003.
Money for Securities Payments to Be Held in Trust
. If the Company,
the Guarantor or any Subsidiary Guarantor shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or before each due date of
the principal of or any premium and interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and
312(e)) sufficient to pay the principal and any premium and interest on Securities of such series
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 and any
related coupons, it will, prior to each due date of the principal of or any premium and interest on
any Securities, deposit with a Paying Agent a sum (in the Currency described in the preceding
paragraph) sufficient to pay such amount so becoming due, 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, and upon 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.
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
70
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 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 sums.
Except as provided in the Securities of any series, and subject to any applicable abandoned
Property laws, any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest on any Security of
any series, or any coupon appertaining thereto, and remaining unclaimed for two years after such
principal, premium and interest has become due and payable shall be paid to the Company 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 or coupon shall thereafter, as an unsecured general creditor, look only
to the Company and, if applicable, 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 or
the Guarantor as trustee thereof, shall thereupon cease;
provided
,
however
, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in each Place of
Payment, 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.
SECTION 1004.
Statement by Officers as to Default
. (a) The Company and the
Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers Certificate, one of the signers of which shall
be the principal executive officer, principal financial officer or principal accounting officer of
the Company or the Guarantor, as the case may be, 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.
(b) The Company and the Guarantor shall, so long as any of Securities of any series are
Outstanding, deliver to the Trustee, forthwith, but in no event later than 30 Business Days, upon
any Officer becoming aware of any event which after notice or lapse of time would become a Default
or Event of Default under clauses (4) or (6) of Section 501, a notice specifying such Default or
Event of Default and what action the Company or the Guarantor, as the case may be is taking or
proposes to take with respect thereto.
SECTION 1005.
Existence
. Subject to Article Eight, the Company and, so long as any
Securities in respect of which Guarantees have been issued are Outstanding, 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 its Board of
Directors shall determine that the preservation thereof is no longer desirable in the
71
conduct of the business of the Company or the Guarantor, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006.
Limitation on Liens
. Unless otherwise indicated with respect to the
Securities, the Company and Holdings each agree that it will not, and will not permit any
Restricted Subsidiary to, create, incur, issue, assume or guarantee any indebtedness for money
borrowed (Debt), secured by a Mortgage upon any Operating Property, or upon shares of capital
stock or Debt issued by any Restricted Subsidiary and owned by the Company or Holdings or any
Restricted Subsidiary, whether owned at the date of this Indenture or hereafter acquired, without
effectively providing concurrently that the Outstanding Securities under this Indenture are secured
equally and ratably with or, at the option of the Company, prior to such Debt so long as such Debt
shall be so secured. Unless, at the time of such creation, incurrence, issuance, assumption or
guarantee, after giving effect thereto and to the retirement of any Debt which is concurrently
being retired, the aggregate amount of all such Debt secured by Mortgages which would otherwise be
subject to such restrictions (other than any Debt secured by Mortgages permitted in clauses (1)
through (7) of this Section 1006) plus all Attributable Debt of the Company, Holdings, and the
Restricted Subsidiaries in respect of Sale and Leaseback Transactions with respect to Operating
Properties (with the exception of such Sale and Leaseback Transactions permitted under clauses (1)
through (4) of Section 1007) does not exceed 10% of Consolidated Net Tangible Assets; provided,
however, that this Section shall not apply to, and there shall be excluded from Debt in any
computation under this Section, Debt secured by:
(1) Mortgages on property existing at the time of the acquisition thereof;
(2) Mortgages on property of a corporation existing at the time such corporation is
merged into or consolidated with the Company, Holdings or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of such corporation (or a
division thereof) as an entirety or substantially as an entirety to the Company, Holdings or
a Restricted Subsidiary,
provided
that any such Mortgage does not extend to any
property owned by the Company, Holdings or any Restricted Subsidiary immediately prior to
such merger, consolidation, sale, lease or disposition;
(3) Mortgages on property of a corporation existing at the time such corporation
becomes a Restricted Subsidiary;
(4) Mortgages in favor of the Company, Holdings or a Restricted Subsidiary;
(5) Mortgages to secure all or part of the cost of acquisition, construction,
development or improvement of the underlying property, or to secure Debt incurred to provide
funds for any such purpose,
provided
that the commitment of the creditor to extend
the credit secured by any such Mortgage shall have been obtained no later than 360 days
after the later of (a) the completion of the acquisition, construction, development or
improvement of such property or (b) the placing in operation of such property;
72
(6) Mortgages in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision thereof, to secure partial,
progress, advance or other payments; and
(7) Mortgages existing on the date of this Indenture or any extension, renewal,
replacement or refunding of any Debt secured by a Mortgage existing on the date of this
Indenture or referred to in clauses (1) to (3) or (5) of this Section 1006,
provided
that any such extension, renewal, replacement or refunding of such Debt shall be created
within 360 days of repaying the Debt secured by the Mortgage referred to in clauses (1) to
(3) or (5) and any such extension, renewal, replacement or refunding of such Debt shall be
created within 360 days of repaying the Debt secured by the Mortgage referred to in clauses
(1) to (3) or (5) and the principal amount of Debt secured thereby and not otherwise
authorized by clauses (1) to (3) or (5) shall not exceed the principal amount of Debt, plus
any premium or fee payable in connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal, replacement or refunding.
SECTION 1007.
Limitation on Sale and Leaseback Transactions
. Unless otherwise
indicated with respect to any series of Securities, the Company and Holdings each agree as to the
Securities, that it will not, and it will not permit any Restricted Subsidiary to, enter into any
Sale and Leaseback Transaction with respect to any Operating Property unless:
(1) the Sale and Leaseback Transaction is solely with the Company, Holdings or another
Restricted Subsidiary;
(2) the lease is for a period not in excess of twenty-four months, including renewals;
(3) the Company, Holdings or such Restricted Subsidiary would (at the time of entering
into such arrangement) be entitled as described in clauses (1) through (7) of Section 1006,
without equally and ratably securing the Securities then outstanding under this Indenture,
to create, incur, issue, assume or guarantee Debt secured by a Mortgage on such Operating
Property in the amount of the Attributable Debt arising from such Sale and Leaseback
Transaction;
(4) the Company, Holdings or such Restricted Subsidiary within 360 days after the sale
of such Operating Property in connection with such Sale and Leaseback Transaction is
completed, applies an amount equal to the greater of (A) the net proceeds of the sale of
such Operating Property or (B) the fair market value of such Operating Property to (i) the
retirement of Securities, other Funded Debt of the Company or Holdings ranking on a parity
with the Securities or Funded Debt of a Restricted Subsidiary or (ii) the purchase of
Operating Property; or
(5) the Attributable Debt of the Company, Holdings and its Restricted Subsidiaries in
respect of such Sale and Leaseback Transaction and all other Sale and Leaseback Transactions
entered into after the date of this Indenture (other than any such Sale and Leaseback
Transactions as would be permitted as described in clauses (1)
73
through (4) of this Section 1007), plus the aggregate principal amount of Debt secured
by Mortgages on Operating Properties then Outstanding (not including any such Debt secured
by Mortgages described in clauses (1) through (7) of Section 1006) which do not equally and
ratably secure such Outstanding Security (or secure such Outstanding Security on a basis
that is prior to other Debt secured thereby), would not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 1008.
SEC and Other Reports
. The Guarantor shall deliver to the Trustee,
within 15 days after it files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Guarantor is required to file with the SEC pursuant to Section 13 or 15 (d) of
the Exchange Act. The Guarantor also shall comply with the provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustees receipt of the same shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Guarantors compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificate).
SECTION 1009.
Further Instruments and Acts
. Upon request of the Trustee or as
otherwise necessary, the Company will execute and deliver such further instruments and do such
further acts or as otherwise necessary may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 1010.
Calculation of Original Issue Discount
.
Upon request of the Trustee,
the Company shall file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and accrual periods), if
any, accrued on Outstanding Securities as of the end of such year.
SECTION 1011.
Additional Amounts
. If any Securities of a series provide for the
payment of additional amounts to any Holder who is not a United States person in respect of any
tax, assessment or governmental charge (Additional Amounts), the Company will pay to the Holder
of any Security of such series or any coupon appertaining thereto such Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal (or premium, if any) or interest, if any, on, or in respect
of, any Security of a series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of a series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that series will not
74
bear interest prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of principal (or premium, if
any) or interest if there has been any change with respect to the matters set forth in the
below-mentioned Officers Certificate, the Company will furnish the Trustee and the Companys
principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal,
premium or interest on the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without withholding for or on
account of any tax, assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers Certificate shall specify
by country the amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In the event that the
Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled to (i) assume that no such
withholding or deduction is required with respect to any payment of principal of (or premium, if
any) or interest, if any, on any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of principal of (and
premium, if any) and interest, if any, on the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to indemnify the Trustee,
any Paying Agent, and their respective officers, directors, employees, and agents for, and to hold
them harmless against, any loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers Certificate furnished pursuant to this Section. This sentence shall
survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
SECTION 1012.
Waiver of Certain Covenants
. The Company or the Guarantor, if
applicable, may, with respect to any series of Securities, omit in any particular instance to
comply with any term, provision or condition which affects such series set forth in Sections 1005,
1006 and 1012, inclusive, or, as specified pursuant to Section 301(15) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to Section 301(14) or Section
301(15) in connection with Securities of such series, if the Holders of at least a majority in
principal amount of all Outstanding Securities affected by such term, provision or condition, by
Act of such Holders, waive such compliance in such instance 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 duties of the Trustee to Holders of Securities of such series in respect of any such term,
provision or condition shall remain in full force and effect.
75
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 the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee
. The election of the Company to
redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, 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 and of the principal amount of Securities of
such series to be redeemed and shall deliver to the Trustee such documentation and records as shall
enable the Trustee to select the Securities to be redeemed pursuant to Section 1103. 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, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption of portions of the
principal of Securities of such series, subject to the rules and
procedures of the Depositary in the case of global notes; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104.
Notice of Redemption
. Except as otherwise specified as contemplated
by Section 301 for Securities of any series, notice of redemption shall be given in the manner
provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, all
notices of redemption shall state:
76
(1) the Redemption Date,
(2) the Redemption Price (if known) or the formula pursuant to which the Redemption
Price is to be determined if the Redemption Price cannot be determined at the time the
notice is given,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to
the Redemption Date payable as provided in Section 1106 will become due and payable upon
each such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Bearer Securities shall be
outside the United States) where such Securities, together in the case of Bearer Securities
with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series,
if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to
the Redemption Date or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or indemnity satisfactory to the Company, the
Guarantor, if applicable, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities
of such series are not to be redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on which such exchanges may
be made,
(10) the CUSIP, ISIN or other similar numbers, if any, assigned to such Securities;
provided, however, that such notice may state that no representation is made as to the
correctness of CUSIP, ISIN or other similar numbers, in which case none of the Company, the
Trustee or any agent of the Company or the Trustee shall have any liability in respect of
the use of any CUSIP, ISIN or other similar number or numbers on such notices, and the
redemption of such Securities shall not be affected by any defect in or omission of such
numbers, and
77
(11) such other matters as the Company shall deem desirable or appropriate.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
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, which it may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest, if any, on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 1106.
Securities Payable on Redemption Date
. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
(together with accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company and, if applicable, the Guarantor and the Subsidiary Guarantors, as applicable,
shall default in the payment of the Redemption Price and accrued interest, if any) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and
provided
further
that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to
78
receive the amount so deducted; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in such Security.
SECTION 1107.
Securities Redeemed in Part
. Any Security which is to be redeemed
only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company, the Guarantor or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company, the
Guarantor and the Trustee duly executed by, the Holder thereof or such Holders attorney duly
authorized in writing), and the Company shall execute, 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, with, if applicable, Guarantees endorsed thereon duly executed by the
Guarantor and the Subsidiary Guarantors, if applicable.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201.
Applicability of Article
. Retirements of Securities of any series
pursuant to any sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities
. Subject to
Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect
to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for redemption) theretofore
purchased or otherwise acquired by the Company, together, in the case of any Bearer Securities of
such series, with all unmatured coupons appertaining thereto, and/or (2) receive credit for the
principal amount of Securities of such series which have been previously delivered
79
to the Trustee by the Company or for Securities of such series 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 mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203.
Redemption of Securities for Sinking Fund
. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the Company will deliver to
the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof,
if any, which is to be satisfied by delivering or crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany such certificate) and
whether the Company intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. In the case of the failure of the Company to
deliver such certificate, the sinking fund payment due on the next succeeding sinking fund payment
date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund payment without the option to deliver
or credit Securities as provided in Section 1202 and without the right to make any optional sinking
fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and at the expense of
the 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.
Prior to any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) in cash a sum equal to the principal (and premium, if any) and any interest that will
accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if
at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking
fund payment date, together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000,
80
the Trustee, unless requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking fund. Any such unused
balance of moneys deposited in such sinking fund shall be added to the sinking fund payment for
such series to be made in cash on the next succeeding sinking fund payment date or, at the request
of the Company, shall be applied at any time or from time to time to the purchase of Securities of
such series, by public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for which the Trustee or
any Paying Agent will be reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301.
Applicability of Article
. Repayment of Securities of any series
before their Stated Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302.
Repayment of Securities
. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided
in the terms of such Securities, be repaid at the Repayment Price thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company, the Guarantor or any Subsidiary Guarantor is
acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all
the Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303.
Exercise of Option
. Securities of any series subject to repayment at
the option of the Holders thereof will contain an Option to Elect Repayment form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so providing for such
repayment, with the Option to Elect Repayment form on the reverse of such Security duly completed
by the Holder (or by the Holders attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the
entire Repayment Price of such Security is to be repaid in accordance with the terms of such
Security, the portion of the Repayment Price of such Security to be repaid, in increments of the
minimum denomination for Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of such Security surrendered that
is not to be repaid, must be specified. Any Security
81
providing for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304.
When Securities Presented for Repayment Become Due and Payable
. If
Securities of any series providing for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company and, if applicable, the Guarantor and any
Subsidiary Guarantor shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided
below, shall be void. Upon surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided, however, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and, unless otherwise
specified pursuant to Section 301, only upon presentation and surrender of such coupons; and
provided
further
that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company,
the Guarantor, if applicable, and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made as provided in the preceding sentence,
such Holder shall be entitled to receive the amount so deducted;
provided
,
however
,
that interest represented by coupons shall be payable only at an office or agency located outside
the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the
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rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set
forth in such Security.
SECTION 1305.
Securities Repaid in Part
. Upon surrender of any Registered Security
which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, and of like tenor, of any
authorized denomination specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which is not to be repaid
with, if applicable, Guarantees endorsed thereon duly executed by the Guarantor and the Subsidiary
Guarantors, as applicable.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401.
Companys Option to Effect Defeasance or Covenant Defeasance
. Except
as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions
of this Article Fourteen shall apply to each series of Securities, and the Company may, at its
option, effect defeasance of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms of such Securities
and in accordance with this Article.
SECTION 1402.
Defeasance and Discharge
. Upon the Companys exercise of the above
option applicable to this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to such Outstanding
Securities and any related coupons on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, defeasance). For this purpose, such defeasance means that the Company,
the Guarantor and any Subsidiary Guarantors shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any related coupons, which shall
thereafter be deemed to be Outstanding only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture insofar as such
Securities and any related coupons are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest, if any, on such Securities and any related coupons when such
payments are due, (B) the Companys obligations and, to the extent applicable, the Guarantors and
any Subsidiary Guarantors obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1011 and such obligations as shall be ancillary thereto, (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without
limitation, Section 606 and the penultimate paragraph of Section 1405 and (D) this Article
Fourteen. Subject to compliance with this Article Fourteen,
83
the Company may exercise its option under this Section 1402 notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403.
Covenant Defeasance
. Upon the Companys exercise of the above option
applicable to this Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 801 and 802 and Sections 1005, 1006 and 1012, and,
if specified pursuant to Section 301, its obligations under any other covenant, with respect to
such Outstanding Securities and any related coupons on and after the date the conditions set forth
in Section 1404 are satisfied (hereinafter, covenant defeasance), and such Securities and any
related coupons shall thereafter be deemed not to be Outstanding for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed Outstanding for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any related coupons, 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 covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of Default under Section
501(4) or Section 501(9) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any related coupons shall be unaffected
thereby.
SECTION 1404.
Conditions to Defeasance or Covenant Defeasance
. The following shall
be the conditions to application of either Section 1402 or Section 1403 to any Outstanding
Securities of or within a series and any related coupons:
(1) The Company, the Guarantor or any Subsidiary Guarantor, if applicable, shall
irrevocably have deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any related coupons, (A) an amount (in such
Currency in which such Securities and any related coupons are then specified as payable at
Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before the due date of
any payment of principal of and premium, if any, and interest, if any, under such Securities
and any related coupons, money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants or a nationally recognized investment bank expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such Outstanding Securities and
any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding Securities and
any related coupons
84
on the day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any related coupons;
provided
that the
Trustee shall have been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and any related
coupons. Before such a deposit, the Company may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of the Securities of
such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or any related
coupons shall have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (7) and (8) of Section 501 are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound.
(4) In the case of an election under Section 1402, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the date of
execution of this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Outstanding Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of the deposit and such
defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if the deposit and such defeasance had not
occurred.
(5) In the case of an election under Section 1403, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been
the case if the deposit and such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
85
relating to either the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with.
SECTION 1405.
Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
. Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the Trustee) pursuant to Section 1404 in respect
of such Outstanding Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related coupons 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 Holders of such
Securities and any related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a
deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms
of such Security to receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(1) has been made in respect of such Security, or (b) a Conversion Event occurs as
contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 1404(1) has been made, the indebtedness represented by such Security
and any related coupons shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if any, on such
Security as they become due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property deposited in respect
of such Security into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for such Currency in
effect on the third Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities and any related
coupons. The foregoing sentence shall survive the termination of this Indenture and the earlier
resignation or removal of the Trustee.
Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or Government Obligations
(or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public
accountants or a nationally recognized investment bank 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 an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
86
SECTION 1406.
Reinstatement
. If the Trustee or any Paying Agent is unable to apply
any money in accordance with Section 1405 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 Companys obligations under this Indenture and such Securities and any
related coupons shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1405;
provided
,
however
, that if the Company makes any payment of principal of (or premium, if any) or
interest, if any, on any such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities and
any related coupons to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501.
Purposes for Which Meetings May Be Called
. If Securities of a series
are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 1502.
Call, Notice and Place of Meetings
. (a) The Trustee may at any time
call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in The City of New York or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine the time and the place in The City
of New York or in London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
SECTION 1503.
Persons Entitled to Vote at Meetings
. To be entitled to vote at any
meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such series by such
87
Holder of Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Person entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1504.
Quorum; Action
. The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders
of Securities of such series;
provided
,
however
, that, if any action is to be taken
at such meeting with respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a),
except that such notice need be given only once not less than five days prior to the date on which
the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series;
provided
,
however
, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of not less than such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal
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amount of all Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(a) there shall be no minimum quorum requirement for such meeting; and
(b) the principal amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505.
Determination of Voting Rights; Conduct and Adjournment of Meetings
.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard
to proof of the holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section
104 or by having the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Securities as
provided in Section 1502(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of Outstanding Securities of such series held or represented
by him (determined as specified in the definition of Outstanding in Section 101);
provided
,
however
, that no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at
which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
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SECTION 1506.
Counting Votes and Recording Action of Meetings
. The vote upon any
resolution submitted to any meeting of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any series shall be prepared by the
Secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy
shall be signed and verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE BY THE GUARANTOR
SECTION 1601.
Guarantee
. If Securities of or within a series are specified, as
contemplated by Section 301, to be guaranteed by the Guarantor, then the Guarantor hereby fully and
unconditionally guarantees to each Holder of any such Security which is authenticated and delivered
by the Trustee and to each Holder of any coupon appertaining to any such Security, if any, and to
the Trustee for itself and on behalf of each such Holder, the due and punctual payment of the
principal of (and premium, if any, on) and interest (including, in case of default, interest on
principal and, to the extent permitted by applicable law, on overdue interest and including any
additional interest required to be paid according to the terms of any such Security or any coupon
appertaining thereto), if any, on each such Security, and the due and punctual payment of any
sinking fund payment (or analogous obligation), if any, provided for with respect to any such
Security, when and as the same shall become due and payable, whether at Maturity, upon redemption,
upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to
the terms thereof and of this Indenture, including, without limitation, the payment of any
Additional Amounts, if any, provided for with respect to any such Security as described under
Section 1011 hereof (the Guarantor Obligations). In case of the failure of the Company or any
successor thereto punctually to pay any such principal, premium, interest or sinking fund payment,
the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at Maturity, upon redemption, upon declaration of
acceleration, upon tender for repayment at the option of any Holder or otherwise, as if such
payment were made by the Company.
The Guarantor hereby agrees that its Guarantor Obligations hereunder shall be as if it were
principal debtor and not merely surety and shall be absolute and unconditional,
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irrespective of the identity of the Company, the validity, regularity or enforceability of any
such Security or coupon appertaining thereto or this Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of any such Security or coupon appertaining
thereto with respect to any provisions thereof, the recovery of any judgment against the Company or
any action to enforce the same, or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a Guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Guarantees will not be discharged except
by complete performance of its obligations contained in any such Security or coupon appertaining
thereto and in this Guarantee.
The Guarantor hereby agrees that, in the event of a default in payment of principal or
premium, if any, or interest on any such Security or any coupon appertaining thereto, whether at
its Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of any such Security or coupon appertaining thereto,
subject to the terms and conditions set forth in this Indenture, directly against the Guarantor to
enforce the Guarantee without first proceeding against the Company. The Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the Trustee or any of the
Holders are prevented by applicable law from exercising their respective rights to accelerate the
Maturity of any such Security or coupon appertaining thereto, to collect interest on any such
Security or coupon appertaining thereto, or to enforce or exercise any other right or remedy with
respect to any such Security or coupon appertaining thereto, the Guarantor shall pay to the Trustee
for the account of the Holder, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the Trustee or any of
the Holders.
If any Holder or the Trustee is required by any court or otherwise to return to the Company or
the Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantor, any amount paid in respect of a Security or any coupons
appertaining thereto by any of them to the Trustee or such Holder, the Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
The Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Company for liquidation, reorganization, should the Company
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Companys assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of any such Security or coupon appertaining thereto are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on any such Security or coupon appertaining thereto, whether as a voidable preference,
fraudulent transfer or otherwise, all as though such payment or performance had not been made.
In the event that any payment or any part thereof is rescinded, reduced, restored or returned, any
such Security or coupon appertaining thereto shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
91
SECTION 1602.
Severability
. In case any provision of the Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1603.
Priority of Guarantee
. Unless otherwise specified pursuant to Section
301 with respect to any series of Securities, and except as provided in the next following
sentence, this Guarantee shall be unsecured and unsubordinated obligations of the Guarantor,
ranking pari passu with all other existing and future unsubordinated and unsecured indebtedness of
the Company and the Guarantor, respectively. With respect to any series of Securities that is
designated as subordinated pursuant to Section 301 and except as otherwise provided in a
supplemental indenture or pursuant to Section 301, the Guarantee Obligations of the Guarantor
hereunder shall be junior and subordinated to any guarantee of any Senior Indebtedness on the same
basis as such Securities are junior and subordinated to any Senior Indebtedness. For the purposes
of the foregoing sentence, the Trustee and the Holders of such subordinated Securities shall have
the right to receive and/or retain payments by the Guarantor only at such times as they may receive
and/or retain payments in respect of such Securities pursuant to this Indenture.
SECTION 1604.
Limitation of Guarantors Liability
. The Guarantor and by its
acceptance hereof each Holder confirms that it is the intention of all such parties that the
Guarantee does not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law or the provisions of its local law relating to fraudulent transfer or
conveyance. To effectuate the foregoing intention, the Holders and the Guarantor hereby
irrevocably agree that the obligations of the Guarantor under the Guarantee shall be limited to the
maximum amount that will not, after giving effect to all other contingent and fixed liabilities of
the Guarantor result in the obligations of the Guarantor under the Guarantee constituting such
fraudulent transfer or conveyance.
SECTION 1605.
Subrogation
. The Guarantor shall be subrogated to all rights of
Holders of the Securities of a series (and of any coupons appertaining thereto) against the Company
in respect of any amounts paid by the Guarantor on account of such Securities or any coupons
appertaining thereto or this Indenture;
provided
,
however
, that, if an Event of
Default has occurred and is continuing, the Guarantor shall not be entitled to enforce or receive
any payments arising out of, or based upon, such right of subrogation until all amounts then due
and payable by the Company under this Indenture or the Securities shall have been paid in full.
SECTION 1606.
Reinstatement
. The Guarantor hereby agrees that the Guarantee
provided for in Section 1601 shall continue to be effective or be reinstated, as the case may be,
if at any time, payment, or any part thereof, of any obligations or interest thereon is rescinded
or must otherwise be restored by a Holder to the Company upon the bankruptcy or insolvency of the
Company or the Guarantor.
SECTION 1607.
Release of the Guarantor
. Concurrently with the discharge of the
Securities under Section 1101, the Legal Defeasance of the Securities under Section 802 or the
Covenant Defeasance of the Securities under Section 803, the Guarantor shall be released from all
their obligations under its Guarantee under this Indenture.
92
So long as no Default exists or upon the occurrence of the following events, with notice or
lapse of time or both, would exist, the Guarantee and any Liens securing the Guarantee shall be
automatically and unconditionally released and discharged upon: any sale, exchange, transfer to
any Person that is not an Affiliate of the Company of all of the Companys Capital Stock in the
Guarantor, which transaction is otherwise in compliance with this Indenture.
SECTION 1608.
Benefits Acknowledged
. The Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements contemplated by this Indenture
and that its guarantee and waivers pursuant to the Guarantee are knowingly made in contemplation of
such benefits.
ARTICLE SEVENTEEN
GUARANTEE BY THE SUBSIDIARY GUARANTORS
SECTION 1701.
Guarantee
. If Securities of or within a series are specified, as
contemplated by Section 301, to be guaranteed by any Subsidiary Guarantor, then such Subsidiary
Guarantor hereby fully and unconditionally guarantees to each Holder of any such Security which is
authenticated and delivered by the Trustee and to each Holder of any coupon appertaining to any
such Security, if any, and to the Trustee for itself and on behalf of each such Holder, the due and
punctual payment of the principal of (and premium, if any, on) and
interest (including, in case of default, interest on principal and,
to the extent permitted by applicable law, on overdue interest and
including any additional interest required to be paid according to
the terms of any such Security or any coupon appertaining thereto),
if any, on each such Security, and the due and punctual payment of
any sinking fund payment (or analogous obligation), if any, provided
for with respect to any such Security, when and as the same shall
become due and payable, whether at Maturity, upon redemption, upon
acceleration, upon tender for repayment at the option of any Holder
or otherwise, according to the terms thereof and of this Indenture,
including, without limitation, the payment of any Additional Amounts,
if any, provided for with respect to any such Security as described
under Section 1011 hereof (the Subsidiary Guarantor Obligations). In case of the failure of the Company or any
successor thereto punctually to pay any such principal, premium, interest or sinking fund payment,
each Subsidiary Guarantor hereby agrees to cause any such payment to be made punctually when and as
the same shall become due and payable, whether at Maturity, upon redemption, upon declaration of
acceleration, upon tender for repayment at the option of any Holder or otherwise, as if such
payment were made by the Company.
Each
Subsidiary Guarantor hereby agrees that its Subsidiary Guarantor Obligations hereunder shall be as
if it were principal debtor and not merely surety and shall be absolute and unconditional,
irrespective of the identity of the Company, the validity, regularity or enforceability of any such
Security or coupon appertaining thereto or this Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of any such Security or coupon appertaining thereto with
respect to any provisions thereof, the recovery of any judgment against the Company or any action
to enforce the same, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Guarantees will not be discharged except
by complete performance of its obligations contained in any such Security or coupon appertaining
thereto and in this Guarantee.
Each Subsidiary Guarantor hereby agrees that, in the event of a default in payment of
principal or premium, if any, or interest on any such Security or any coupon appertaining thereto,
whether at its Maturity, by acceleration, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of any such Security or coupon
appertaining thereto, subject to the terms and conditions set forth in this Indenture,
93
directly against such Subsidiary Guarantor to enforce the Guarantee without first proceeding
against the Company. Each Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the Maturity of any such Security or
coupon appertaining thereto, to collect interest on any such Security or coupon appertaining
thereto, or to enforce or exercise any other right or remedy with respect to any such Security or
coupon appertaining thereto, such Subsidiary Guarantor shall pay to the Trustee for the account of
the Holder, upon demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to return to the Company or
any Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or such Subsidiary Guarantor, any amount paid in respect of a
Security or any coupons appertaining thereto by any of them to the Trustee or such Holder, the
Guarantee of such Subsidiary Guarantor, to the extent theretofore discharged, shall be reinstated
in full force and effect.
The Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Company for liquidation, reorganization, should the Company
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Companys assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of any such Security or coupon appertaining thereto are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on any such Security or coupon appertaining thereto, whether as a voidable preference,
fraudulent transfer or otherwise, all as though such payment or performance had not been made.
In the event that any payment or any part thereof is rescinded, reduced, restored or returned, any
such Security or coupon appertaining thereto shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
SECTION 1702.
Severability
. In case any provision of the Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1703.
Priority of Guarantee
. Unless otherwise specified pursuant to Section
301 with respect to any series of Securities, and except as provided in the next following
sentence, this Guarantee shall be unsecured and unsubordinated obligations of each Subsidiary
Guarantor, ranking pari passu with all other existing and future unsubordinated and unsecured
indebtedness of the Company and such Subsidiary Guarantor, respectively. With respect to any
series of Securities that is designated as subordinated pursuant to Section 301 and except as
otherwise provided in a supplemental indenture or pursuant to
Section 301, the Subsidiary Guarantee
Obligations of each Subsidiary Guarantor hereunder shall be junior and subordinated to any
guarantee of any Senior Indebtedness on the same basis as such Securities are junior and
subordinated to any Senior Indebtedness. For the purposes of the foregoing sentence, the Trustee
and the Holders of such subordinated Securities shall have the right to receive and/or retain
94
payments by each Subsidiary Guarantor only at such times as they may receive and/or retain
payments in respect of such Securities pursuant to this Indenture.
SECTION 1704.
Limitation of Subsidiary Guarantors Liability
. Each Subsidiary
Guarantor and by its acceptance hereof each Holder confirms that it is the intention of all such
parties that the Guarantee does not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law or the provisions of its local law relating to fraudulent transfer
or conveyance. To effectuate the foregoing intention, the Holders and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of any Subsidiary Guarantor under the Guarantee shall
be limited to the maximum amount that will not, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor result in the obligations of such Subsidiary
Guarantor under the Guarantee constituting such fraudulent transfer or conveyance.
SECTION 1705.
Subrogation
. Each Subsidiary Guarantor shall be subrogated to all
rights of Holders of the Securities of a series (and of any coupons appertaining thereto) against
the Company in respect of any amounts paid by such Subsidiary Guarantor on account of such
Securities or any coupons appertaining thereto or this Indenture;
provided
,
however
, that, if an Event of Default has occurred and is continuing, such Subsidiary
Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all amounts then due and payable by the Company under this
Indenture or the Securities shall have been paid in full.
SECTION 1706.
Reinstatement
. Each Subsidiary Guarantor hereby agrees that the
Guarantee provided for in Section 1701 shall continue to be effective or be reinstated, as the case
may be, if at any time, payment, or any part thereof, of any obligations or interest thereon is
rescinded or must otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or such Subsidiary Guarantor.
SECTION 1707.
Release of the Subsidiary Guarantors
. Concurrently with the discharge
of the Securities under Section 1101, the Legal Defeasance of the Securities under Section 802 or
the Covenant Defeasance of the Securities under Section 803, each Subsidiary Guarantor shall be
released from all its obligations under its Guarantee under this Indenture.
So long as no Default exists or upon the occurrence of the following events, with notice or
lapse of time or both, would exist, the Guarantee of any Subsidiary Guarantor and any Liens
securing such Guarantee shall be automatically and unconditionally released and discharged upon:
(a) any sale, exchange or transfer (by merger or otherwise) of all of the Capital Stock of such
Guarantor, or the sale or disposition of all the assets of such Subsidiary Guarantor, which
transaction is otherwise in compliance with this Indenture or (b) the election of the Company to
effect such a release following the first day upon which the Securities have ratings equal to or
higher than Baa3 (or the equivalent) by Moodys Investors Service, Inc. and BBB- (or the
equivalent) by Standard & Poors Ratings Group, Inc. (each, an Investment Grade Rating), in each
case, with a stable or better outlook;
provided
that a change in outlook shall not by itself
constitute a loss of an Investment Grade Rating.
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SECTION 1708.
Benefits Acknowledged
. Each Subsidiary Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by this
Indenture and that its guarantee and waivers pursuant to the Guarantee are knowingly made in
contemplation of such benefits.
This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of
the day and year first above written.
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AMERICAN AXLE & MANUFACTURING, INC.
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By:
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Name:
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Title:
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AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC.
as Guarantor
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By:
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Name:
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Title:
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AAM INTERNATIONAL HOLDINGS, INC.
as Subsidiary Guarantor
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By:
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Name:
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Title:
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ACCUGEAR, INC.
as Subsidiary Guarantor
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By:
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Name:
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Title:
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COLFOR MANUFACTURING, INC.
as Subsidiary Guarantor
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By:
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Name:
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Title:
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DIETRONIK, INC.
as Subsidiary Guarantor
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By:
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Name:
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Title:
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MSP INDUSTRIES CORPORATION
as Subsidiary Guarantor
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By:
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Name:
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Title:
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OXFORD FORGE, INC.
as Subsidiary Guarantor
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By:
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Name:
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Title:
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Attest:
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Name:
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Title:
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EXHIBIT A
FORMS OF CERTIFICATION
A-1
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States federal income taxation regardless
of its source (United States person(s)), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as financial
institutions) purchasing for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise American Axle & Manufacturing, Inc. or its agent
that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, United States means the United States of America (including the states and
the District of Columbia); and its possessions include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you
intend to submit your certification relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
A-1-1
This certificate excepts and does not relate to [U.S.$]__________ of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.
We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
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[Name of Person Making Certification]
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(Authorized Signatory)
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Name:
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Title:
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A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our Member
Organizations) substantially in the form attached hereto, as of the date hereof, [U.S.$]__________
principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation regardless of its
source (United States person(s)), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as financial institutions)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or through its agent,
that we may advise American Axle & Manufacturing, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Securities for purposes of resale directly
or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the states and
the District of Columbia); and its possessions include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any notification from any of our
A-2-1
Member Organizations to the effect that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of
any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
{To be dated no earlier than the Exchange
Date or the relevant Interest Payment
Date occurring prior to the Exchange Date,
as applicable}
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[EUROCLEAR BANK S.A./N.V.]
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[CLEARSTREAM]
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By
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A-2-2