Exhibit 4.1

 

EXECUTION VERSION

 

CF INDUSTRIES, INC.
as Issuer

 

CF INDUSTRIES HOLDINGS, INC.
as a Guarantor

 

 

INDENTURE

 

Dated as of

 

May 23, 2013

 

 

DEBT SECURITIES

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

Trustee

 

 

CROSS-REFERENCE SHEET*

 

Trust Indenture
Act Section		Indenture Section
§ 310(a)		11.04(a)
(b)		11.04(b), 11.05
§ 311		11.01(f), 11.11
§ 312(a)		10.03
(b)		11.10
(c)		11.10
§ 313(a)		10.01(a)
(b)		10.01(a)
(c)		10.01(b)
(d)		10.01(b)
§ 314(a)(1)		10.02
(a)(2)		10.02
(a)(4)		6.05
(c)		16.01(a)
(e)		16.01(b)
§ 315(a)(1)		11.02(b)(i)(A)
(a)(2)		11.02(b)(i)(B)
(b)		11.03
(c)		11.02(a)
(d)		11.02(b)
(e)		7.08
§ 316(a) (last sentence)		1.01 (definition of “Outstanding”)
(a)(1)		7.06
(b)		7.07
(c)		8.02(e), 14.02(d)
§ 317(a)		7.03, 7.04
(b)		6.03(c)
§318		16.02

 

*This cross-reference sheet shall not, for any purpose, be deemed to be a part of this Indenture.

 

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TABLE OF CONTENTS*

 

		PAGE
ARTICLE I
DEFINITIONS
Section 1.01	Definitions	2
ARTICLE II
FORMS OF SECURITIES
Section 2.01	Terms of the Securities	13
Section 2.02	Form of Trustee’s Certificate of Authentication	13
Section 2.03	Form of Trustee’s Certificate of Authentication by an Authenticating Agent	14
ARTICLE III
THE DEBT SECURITIES
Section 3.01	Amount Unlimited; Issuable in Series	15
Section 3.02	Denominations	18
Section 3.03	Execution, Authentication, Delivery and Dating	18
Section 3.04	Temporary Securities	20
Section 3.05	Registrar	21
Section 3.06	Transfer and Exchange	21
Section 3.07	Mutilated, Destroyed, Lost and Stolen Securities	25
Section 3.08	Payment of Interest; Interest Rights Preserved	26
Section 3.09	Cancellation	27
Section 3.10	Computation of Interest	27
Section 3.11	Currency of Payments in Respect of Securities	28
Section 3.12	Judgments	28
Section 3.13	CUSIP Numbers	29
ARTICLE IV
REDEMPTION OF SECURITIES
Section 4.01	Applicability of Right of Redemption	29

 

*              The Table of Contents is not a part of this Indenture.

 

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Section 4.02	Selection of Securities to be Redeemed	29
Section 4.03	Notice of Redemption	30
Section 4.04	Deposit of Redemption Price	31
Section 4.05	Securities Payable on Redemption Date	31
Section 4.06	Securities Redeemed in Part	31
ARTICLE V
SINKING FUNDS
Section 5.01	Applicability of Sinking Fund	32
Section 5.02	Mandatory Sinking Fund Obligation	32
Section 5.03	Optional Redemption at Sinking Fund Redemption Price	32
Section 5.04	Application of Sinking Fund Payment	33
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01	Payments of Securities	34
Section 6.02	Paying Agent	34
Section 6.03	To Hold Payment in Trust	35
Section 6.04	Merger, Consolidation and Sale of Assets	36
Section 6.05	Compliance Certificate	37
Section 6.06	Conditional Waiver by Holders of Securities	37
Section 6.07	Statement by Officers as to Default	37
ARTICLE VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01	Events of Default	38
Section 7.02	Acceleration; Rescission and Annulment	39
Section 7.03	Other Remedies	41
Section 7.04	Trustee as Attorney-in-Fact	41
Section 7.05	Priorities	42
Section 7.06	Control by Securityholders; Waiver of Past Defaults	42
Section 7.07	Limitation on Suits	43
Section 7.08	Undertaking for Costs	43
Section 7.09	Remedies Cumulative	44
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01	Evidence of Action of Securityholders	44
Section 8.02	Proof of Execution or Holding of Securities	45
Section 8.03	Persons Deemed Owners	45

 

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Section 8.04	Effect of Consents	46
ARTICLE IX
SECURITYHOLDERS’ MEETINGS
Section 9.01	Purposes of Meetings	46
Section 9.02	Call of Meetings by Trustee	46
Section 9.03	Call of Meetings by Company or Securityholders	47
Section 9.04	Qualifications for Voting	47
Section 9.05	Regulation of Meetings	47
Section 9.06	Voting	48
Section 9.07	No Delay of Rights by Meeting	48
ARTICLE X
REPORTS BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
Section 10.01	Reports by Trustee	48
Section 10.02	Reports by the Company	49
Section 10.03	Securityholders’ Lists	49
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01	Rights of Trustees; Compensation and Indemnity	49
Section 11.02	Duties of Trustee	53
Section 11.03	Notice of Defaults	54
Section 11.04	Eligibility; Disqualification	54
Section 11.05	Resignation and Notice; Removal	55
Section 11.06	Successor Trustee by Appointment	56
Section 11.07	Successor Trustee by Merger	57
Section 11.08	Right to Rely on Officer’s Certificate	58
Section 11.09	Appointment of Authenticating Agent	58
Section 11.10	Communications by Securityholders with Other Securityholders	59
Section 11.11	Preferential Collection of Claims Against Company	59
ARTICLE XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01	Applicability of Article	59
Section 12.02	Satisfaction and Discharge of Indenture	59
Section 12.03	Discharge or Defeasance upon Deposit of Moneys or U.S. Government Obligations	60
Section 12.04	Repayment to Company	62

 

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Section 12.05	Indemnity for U.S. Government Obligations	63
Section 12.06	Deposits to Be Held in Escrow	63
Section 12.07	Application of Trust Money	63
Section 12.08	Deposits of Non-U.S. Currencies	64
ARTICLE XIII
IMMUNITY OF CERTAIN PERSONS
Section 13.01	No Personal Liability	64
ARTICLE XIV
SUPPLEMENTAL INDENTURES
Section 14.01	Without Consent of Securityholders	65
Section 14.02	With Consent of Securityholders; Limitations	67
Section 14.03	Trustee Protected	68
Section 14.04	Effect of Execution of Supplemental Indenture	68
Section 14.05	Notation on or Exchange of Securities	69
Section 14.06	Conformity with TIA	69
ARTICLE XV
SUBORDINATION OF SECURITIES
Section 15.01	Agreement to Subordinate	69
Section 15.02	Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities	69
Section 15.03	No Payment on Securities in Event of Default on Senior Indebtedness	71
Section 15.04	Payments on Securities Permitted	72
Section 15.05	Authorization of Securityholders to Trustee to Effect Subordination	72
Section 15.06	Notices to Trustee	72
Section 15.07	Trustee as Holder of Senior Indebtedness	73
Section 15.08	Modifications of Terms of Senior Indebtedness	73
Section 15.09	Reliance on Judicial Order or Certificate of Liquidating Agent	73
Section 15.10	Satisfaction and Discharge; Discharge and Covenant Defeasance	74
Section 15.11	Trustee Not Fiduciary for Holders of Senior Indebtedness	74
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01	Certificates and Opinions as to Conditions Precedent	74
Section 16.02	Trust Indenture Act Controls	75
Section 16.03	Notices; Waiver of Notice	75
Section 16.04	No Adverse Interpretation of Other Agreements	76
Section 16.05	Legal Holiday	77

 

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Section 16.06	Effects of Headings and Table of Contents	77
Section 16.07	Successors and Assigns	77
Section 16.08	Separability Clause	77
Section 16.09	Benefits of Indenture	77
Section 16.10	Counterparts Originals	77
Section 16.11	Governing Law; Waiver of Trial by Jury	77
Section 16.12	USA PATRIOT ACT	78

 

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IN DENTURE dated as of May 23, 2013, among CF Industries, Inc., a Delaware corporation (the “Company”), CF Industries Holdings, Inc., a Delaware corporation (the “Parent”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debentures, notes, bonds or other evidences of indebtedness (the “Securities”) in an unlimited aggregate principal amount to be issued from time to time in one or more series as provided in this Indenture, and the Parent has duly authorized the execution and delivery of this Indenture to provide for the guarantee by the Parent of the Securities; and

 

WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Company and the Parent, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

That, in consideration of the premises and the purchase of the Securities by the Holders thereof for the benefit of each other and the equal and proportionate benefit of all of the present and future Holders of the Securities (and, to the extent the provisions of Article XV are applicable to the Securities of any series, the benefit of Senior Indebtedness with respect to the Securities of such series), each party agrees and covenants as follows:

 

ARTICLE I

 

DEFINITIONS

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)           the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(b)           all terms used herein without definition which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(c)           the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

 

(d)           references to “Article” or “Section” or other subdivision herein are references to an Article, Section or other subdivision of this Indenture.

 

 

Section 1.01          Definitions.

 

Except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:

 

Affiliate:

 

The term “Affiliate,” with respect to any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Agent:

 

The term “Agent” means any Registrar, Paying Agent or Security Custodian .

 

Applicable Procedures:

 

The term “Applicable Procedures” means, with respect to any payment, tender, redemption, transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the Depositary for the series of Securities all or part of which is evidenced by such Global Security that apply to such payment, tender, redemption, transfer or exchange.

 

Authenticating Agent:

 

The term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.

 

Board of Directors:

 

The term “Board of Directors” shall mean either the board of directors of the Company  or the executive or any other committee of that board duly authorized to act in respect hereof.

 

Board Resolution:

 

The term “Board Resolution” shall mean a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors (or by a committee of the Board of Directors to the extent that any such committee has been authorized by the Board of Directors to establish or approve the matters contemplated) and to be in full force and effect on the date of such certification. References to any matter in this Indenture being established in, by or pursuant to a Board Resolution shall include actions taken and matters established pursuant to authority granted by one or more Board Resolutions.

 

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Business Day:

 

The term “Business Day,” when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the Trustee or banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.

 

Capital Stock:

 

The term “Capital Stock” shall mean:

 

(a)        in the case of a corporation, corporate stock;

 

(b)        in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(c)        in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

(d)        any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

Code:

 

The term “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

Company:

 

The term “Company” shall mean 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 Order:

 

The term “Company Order” shall mean a written order signed in the name of the Company by the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or Corporate Treasurer, any Assistant Treasurer or Assistant Corporate Treasurer, the Controller or Corporate Controller, any Assistant Controller or Assistant Corporate Controller, the Secretary or any Assistant Secretary of the Company, and delivered to the Trustee.

 

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Corporate Trust Office:

 

The term “Corporate Trust Office,” or other similar term, shall mean the principal office of the Trustee at which at any particular time its corporate trust business in respect of this Indenture shall be administered, which office at the date hereof is located at 230 West Monroe Street, Suite 2900, Chicago, Illinois 60606, Attn: Corporate Trust Services, and with respect to Agent services such term shall also mean the office or agency of the Trustee located at 608 Second Avenue South, N9303-121, Minneapolis, Minnesota 55479, Attn:  Corporate Trust Operations, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

 

Covenant Defeasance:

 

The term “Covenant Defeasance” shall have the meaning assigned to it in Section 12.03.

 

Currency:

 

The term “Currency” shall mean U.S. Dollars or Foreign Currency.

 

Default:

 

The term “Default” shall have the meaning assigned to it in Section 11.03.

 

Defaulted Interest:

 

The term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).

 

Depositary:

 

The term “Depositary” shall mean, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, each Person designated by the Company as Depositary for the Securities of such series pursuant to Section 3.01 until one or more successor Depositaries for the Securities of such series shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include, with respect to the Securities of such series, each Person who is then a Depositary hereunder with respect to the Securities of such series. If at any time there is more than one such Person, “Depositary,” as used with respect to the Securities of any such series, shall mean each such Person as Depositary with respect to the Securities of that series or, as used with respect to a particular Global Security, each such Person that is a Depositary for such Global Security.

 

Designated Currency:

 

The term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.

 

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Discharged:

 

The term “Discharged” shall have the meaning assigned to it in Section 12.03.

 

Event of Default:

 

The term “Event of Default” shall have the meaning specified in Section 7.01.

 

Exchange Act:

 

The term “Exchange Act” shall mean the United States Securities Exchange Act of 1934, and the rules and regulations promulgated by the SEC thereunder and any statute successor thereto, in each case as amended from time to time.

 

Exchange Rate:

 

The term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.

 

Floating Rate Security:

 

The term “Floating Rate Security” shall mean a Security that provides for the payment of interest at a variable rate determined periodically by reference to an interest rate index specified pursuant to Section 3.01.

 

Foreign Currency:

 

The term “Foreign Currency” shall mean a currency issued by the government of any country other than the United States or a composite currency, the value of which is determined by reference to the values of the currencies of any group of countries.

 

GAAP:

 

The term “GAAP,” with respect to any computations required or permitted hereunder, shall mean generally accepted accounting principles in the United States as in effect from time to time.

 

Global Security:

 

The term “Global Security” shall mean any Security that evidences all or part of a series of Securities, issued in fully-registered certificated form to the Depositary for such series (or such Depositary’s nominee) in accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(g) and any other legend required by the Depositary for such series.

 

Guarantors:

 

The term “Guarantors” shall mean, with respect to the Securities of any series, the Parent and each other Person designated in accordance with Section 3.01(m) as a Guarantor with respect to a such series, until, in each case, such Person is released as a Guarantor with respect to the Securities of such series pursuant to the terms of this Indenture.

 

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Holder; Holder of Securities:

 

The terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder of Securities; Holder.”

 

Indebtedness:

 

The term “Indebtedness” shall mean any and all obligations of a Person for money borrowed which, in accordance with GAAP, would be reflected on the balance sheet of such Person as a liability on the date as of which Indebtedness is to be determined.

 

Indenture:

 

The term “Indenture” or “this Indenture” shall mean 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, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01; provided, however, that if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture” shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended 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 3.01, 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; provided, further that in the event that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture” for a particular series of Securities shall only include the supplemental indentures applicable thereto.

 

Individual Securities:

 

The term “Individual Securities” shall have the meaning specified in Section 3.01(p).

 

Interest:

 

The term “interest” shall mean, unless the context otherwise requires, interest payable on any Securities, and with respect to an Original Issue Discount Security that by its terms bears interest only after Maturity, interest payable after Maturity.

 

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Interest Payment Date:

 

The term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment of interest on such Security.

 

Mandatory Sinking Fund Payment:

 

The term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).

 

Maturity:

 

The term “Maturity,” with respect to any Security, shall mean the date on which the principal or an installment of principal of such Security shall become due and payable as therein and herein provided, whether by declaration of acceleration, call for redemption or otherwise.

 

Members:

 

The term “Members” shall have the meaning assigned to it in Section 3.03(i).

 

Officer’s Cert i ficate:

 

The term “Officer’s Certificate” shall mean a certificate signed by the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or Corporate Treasurer, any Assistant Treasurer or Assistant Corporate Treasurer, the Controller or Corporate Controller, any Assistant Controller or Assistant Corporate Controller, the Secretary or any Assistant Secretary of the Company. Each such certificate shall include the statements provided for in Section 16.01 if and to the extent required by the provisions of such Section.

 

Opinion of Counsel:

 

The term “Opinion of Counsel” shall mean an opinion in writing signed by one or more legal counsel, who may be counsel to or an employee of the Company, or other counsel reasonably acceptable to the Trustee, that meets the requirements, to the extent applicable to such opinion, provided for in Section 16.01.

 

Optional Sinking Fund Payment:

 

The term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).

 

Original Issue Discount Security:

 

The term “Original Issue Discount Security” shall mean any Security that is issued with “original issue discount” within the meaning of Section 1273(a) of the Code and the regulations thereunder, or any successor provision, and any other Security designated by the Company as issued with original issue discount for United States federal income tax purposes.

 

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Outstanding:

 

The term “Outstanding,” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(a)        Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

 

(b)        Securities or portions thereof for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities (in each case other than pursuant to Section 12.03); provided, however, that if such Securities or portions thereof 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;

 

(c)        Securities as to which the Company’s obligations have been Discharged pursuant to Section 12.03 or as to which Covenant Defeasance has been effected pursuant to Section 12.03, except, in each case, to the extent provided in Section 12.03; and

 

(d)        Securities that have been paid pursuant to Section 3.07(b) 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 a Responsible Officer of the Trustee proof satisfactory to it that such Securities are held by a protected 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 Securities of a series Outstanding have given or made any request, demand, authorization, direction, notice, consent or waiver or performed any other action hereunder or are present for quorum purposes at any meeting of Securityholders, Securities owned by the Company or any other obligor upon the Securities of such series 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 relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action or in determining the presence of a quorum at a meeting of Securityholders, only Securities of such series that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have given or made any request, demand, authorization, direction, notice, consent or waiver or performed any other action hereunder or are present for quorum purposes at any meeting of Securityholders, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02

 

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and the principal amount of a Security denominated in a Foreign Currency that shall be deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).

 

Paying Agent:

 

The term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).

 

Person:

 

The term “Person” shall mean an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, an unincorporated organization or a government or an agency or political subdivision thereof.

 

Place of Payment:

 

The term “Place of Payment” shall mean, when used with respect to the Securities of any series, the place or places where the principal of and premium, if any, and interest on the Securities of that series are payable as specified pursuant to Section 3.01.

 

Predecessor Security:

 

The term “Predecessor Security” shall mean, with respect to any Security, every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Security.

 

Record Date:

 

The term “Record Date” shall mean, with respect to any interest payable on any Security on any Interest Payment Date, the close of business on any date specified in such Security for the payment of interest pursuant to Section 3.01.

 

Redemption Date:

 

The term “Redemption Date” shall mean, when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this Indenture and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01, shall be an Interest Payment Date only.

 

Redemption Price:

 

The term “Redemption Price,” when used with respect to any Security to be redeemed, in whole or in part, shall mean the price at which it is to be redeemed pursuant to the terms of the applicable Security and this Indenture.

 

Register:

 

The term “Register” shall have the meaning assigned to it in Section 3.05(a).

 

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Registrar:

 

The term “Registrar” shall have the meaning assigned to it in Section 3.05(a).

 

Responsible Officer:

 

The term “Responsible Officer” of the Trustee hereunder shall mean any vice president, any assistant vice president, any trust officer, any assistant trust officer or any other officer associated with the corporate trust department of the Trustee customarily performing functions similar to those performed by any of the above designated officers, who shall have direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject.

 

SEC:

 

The term “SEC” shall mean the United States Securities and Exchange Commission, as constituted from time to time.

 

Securities Act:

 

The term “Securities Act” shall mean the United States Securities Act of 1933 and the rules and regulations promulgated by the SEC thereunder and any statute successor thereto, in each case as amended from time to time.

 

Security:

 

The term “Security” or “Securities” shall have the meaning stated in the recitals and shall more particularly mean one or more of the Securities duly authenticated by the Trustee and delivered pursuant to the provisions of this Indenture.

 

Security Custodian:

 

The term “Security Custodian” shall mean the custodian with respect to any Global Security appointed by the Depositary, or any successor Person thereto, and shall initially be the Paying Agent.

 

Securityholder; Holder of Securities; Holder:

 

The term “Securityholder” or “Holder of Securities” or “Holder” shall mean the Person in whose name Securities shall be registered in the Register.

 

Senior Indebtedness:

 

The term “Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest on (x) Indebtedness of 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

 

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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, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate in right of payment to any other Indebtedness of the Company, and (y) renewals, extensions, modifications and refundings of any such Indebtedness. For purposes of this definition of “Senior Indebtedness,” the phrase “subordinated in right of payment” means debt subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens, second liens and other contractual arrangements that provide for priorities among Holders of the same or different issues of indebtedness with respect to any collateral or the proceeds of collateral shall not constitute subordination in right of payment. This definition may be modified or superseded by a supplemental indenture.

 

Special Record Date:

 

The term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).

 

Stated Maturity:

 

The term “Stated Maturity” when used with respect to any Security or any installment of principal or interest thereon, shall mean the date specified in such Security as the fixed date on which the principal (or any portion thereof) of or premium, if any, on such Security or such installment of principal or interest is due and payable.

 

Subsidiary:

 

The term “Subsidiary,” when used with respect to any Person, shall mean:

 

(a)                         any corporation, limited liability company, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, limited liability company, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(b)                        any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

 

Successor Company:

 

The term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).

 

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Trade Payables:

 

The term “Trade Payables” means accounts payable or any other Indebtedness or monetary obligations to trade creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities).

 

Trust Indenture Act; TIA:

 

The term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this Indenture, except as provided in Section 14.06 and except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect on another date.

 

Trustee:

 

The term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

USA PATRIOT ACT:

 

The term “USA PATRIOT ACT” shall have the meaning assigned to it in Section 16.12.

 

U.S. Dollars:

 

The term “U.S. Dollars” shall mean such currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

 

U.S. Government Obligations:

 

The term “U.S. Government Obligations” shall have the meaning assigned to it in Section 12.03.

 

United States:

 

The term “United States” shall mean the United States of America (including the States and the District of Columbia), its territories and its possessions and other areas subject to its jurisdiction.

 

Wholly Owned Subsidiary:

 

The term “Wholly Owned Subsidiary,” when used with respect to any Person, shall mean:

 

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(a)                         any corporation, limited liability company, association or other business entity of which 100% of the total voting power of shares (other than directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, limited liability company, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(b)                        any partnership (i) the sole general partner or the managing general partner of which is such Person or a Wholly Owned Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Wholly Owned Subsidiaries of that Person (or any combination thereof).

 

ARTICLE II

 

FORMS OF SECURITIES

 

Section 2.01                              Terms of the Securities .

 

(a)                        The Securities of each series shall be substantially in the form set forth in a Company Order or in one or more indentures supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required or not prohibited by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not prohibited by the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which any series of the Securities may be listed or of any automated quotation system on which any such series may be quoted, or to conform to usage, all as determined by the officers executing such Securities as conclusively evidenced by their execution of such Securities.

 

(b)                        The terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Company, the Parent and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby.

 

Section 2.02                              Form of Trustee’s Certificate of Authentication .

 

(a)                        Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of authentication hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose or entitle the Holder thereof to any right or benefit under this Indenture.

 

(b)                        Each Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified as contemplated in Section 3.01.

 

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(c)                         The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

Date of authentication:			WELLS FARGO BANK, NATIONAL ASSOCIATION, as
			Trustee
			By:
				Authorized Signatory

 

Section 2.03                              Form of Trustee’s Certificate of Authentication by an Authenticating Agent .  If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be borne by Securities of each such series shall be substantially as follows:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

Date of authentication:			WELLS FARGO BANK, NATIONAL ASSOCIATION, as
			Trustee
			By:	[NAME OF AUTHENTICATING AGENT]
				as Authenticating Agent
			By:
				Authorized Signatory

 

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ARTICLE III

 

THE DEBT SECURITIES

 

Section 3.01                              Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be set forth in a Company Order or in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

 

(a)                        the title of the Securities of such series (which shall distinguish the Securities of such series from the Securities of all other series, except to the extent that additional Securities of an existing series are being issued);

 

(b)                        any limit upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);

 

(c)                         the dates on which or periods during which the Securities of such series may be issued, and the dates on, or the range of dates within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such date or dates shall be determined or extended;

 

(d)                        the rate or rates at which the Securities of such series shall bear interest, if any, or the method by which such rate or rates shall be determined, whether such interest shall be payable in cash or additional Securities of the same series or another class or series of securities or shall accrue and increase the aggregate principal amount outstanding of such series (including if such Securities were originally issued at a discount), the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the determination of Holders to whom interest is payable on such Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest payments and the duration of such extension or deferral;

 

(e)                         if other than U.S. Dollars, the Currency in which Securities of such series shall be denominated or in which payment of the principal of, premium, if any, or interest on the Securities of such series shall be payable and any other terms concerning such payment;

 

(f)                          if the amount of payment of principal of, premium, if any, or interest on the Securities of such series may be determined with reference to an index, formula or other method, including, but not limited to, an index based on a Currency or Currencies other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;

 

(g)                         if the principal of, premium, if any, or interest on Securities of such 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 without such election, the period or periods within which, and the terms and conditions upon which, such election may

 

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be made and the time and the manner of determining the exchange rate between the Currency in which such Securities are denominated or payable without such election and the Currency in which such Securities are to be paid if such election is made;

 

(h)                        the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium, if any, and interest on Securities of such series shall be payable, and where Securities of such series may be presented for registration of transfer, exchange or conversion, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made;

 

(i)                            the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;

 

(j)                           the obligation or right, if any, of the Company to redeem, purchase or repay Securities of such series pursuant to any sinking fund, amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which or the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

(k)                        if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which Securities of such series shall be issuable;

 

(l)                            if other than the principal amount thereof, the portion of the principal amount of the Securities of such series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02;

 

(m)                    the form and terms of the Parent’s guarantee (including provisions relating to seniority or subordination of such guarantee and the release of such guarantee or of the Parent as a Guarantor of the Securities of such series) of any payment or other obligations on such Securities, the other Guarantors, if any, of the Securities of such series, and the form and terms of any such other Guarantors’ guarantees (including provisions relating to seniority or subordination of such guarantees and the release of such other Guarantors) of any payment or other obligations on such Securities and any additions or changes to this Indenture to permit or facilitate guarantees of such Securities;

 

(n)                        whether the Securities of such series are to be issued as Original Issue Discount Securities and the amount of discount with which such Securities may be issued;

 

(o)                        provisions, if any, for the defeasance of Securities of such series in whole or in part and any addition to or change in the provisions related to satisfaction and discharge;

 

(p)                        whether the Securities of such series are to be issued in whole or in part in the form of one or more Global Securities and, in such case, the Depositary for such Global Security or Global Securities, and the terms and conditions, if any, upon which interests in such

 

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Global Security or Global Securities may be exchanged in whole or in part for the individual securities represented thereby in definitive form registered in the name or names of Persons other than such Depositary or a nominee or nominees thereof (“Individual Securities”);

 

(q)                        the date as of which any Global Security of such series shall be dated if other than the original issuance of the first Security of such series to be issued;

 

(r)                           the form of the Securities of such series;

 

(s)                          if the Securities of such series are to be convertible into or exchangeable for any securities or property of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes to this Indenture, if any, to permit or facilitate such conversion or exchange;

 

(t)                           whether the Securities of such series are subject to subordination and the terms of such subordination;

 

(u)                        if any payment or other obligations on Securities of such series or guarantees thereof are to be secured by any property, the nature of such security and provisions related thereto;

 

(v)                        any restriction or condition on the transferability of the Securities of such series;

 

(w)                      any addition or change agreed with the Trustee in writing in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of such series;

 

(x)                        any addition or change in the provisions related to supplemental indentures set forth in Sections 14.01, 14.02 and 14.04 which applies to Securities of such series;

 

(y)                        provisions, if any, granting special rights to Holders of Securities of such series upon the occurrence of specified events;

 

(z)                         any addition to or change in the Events of Default which applies to any Securities of such series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02 and any addition to or change in the provisions set forth in Article VII which applies to Securities of such series;

 

(aa)                 provisions, if any, to permit or facilitate the issuance of Securities of such series in bearer form, registrable or not registrable as to principal and with or without interest coupons;

 

(bb)                 any addition to or change in the covenants set forth in Article VI which applies to Securities of such series; and

 

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(cc)                   any other terms of the Securities of such series or guarantees thereof (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series or guarantees).

 

All Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided herein or set forth in a Company Order or in one or more indentures supplemental hereto.

 

Section 3.02                              Denominations .  In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series shall be issuable only as Securities in denominations of $2,000 and integral multiples of $1,000 in excess thereof and shall be payable only in U.S. Dollars.

 

Section 3.03                              Execution, Authentication, Delivery and Dating .

 

(a)                        The Securities shall be executed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer, its President, its Chief Financial Officer, one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, its Controller or Corporate Controller, one of its Assistant Controllers or Assistant Corporate Controllers, its Treasurer or Corporate Treasurer, one of its Assistant Treasurers or Assistant Corporate Treasurers, its General Counsel, its Secretary or one of its Assistant Secretaries. If the Person whose signature is on a Security no longer holds that office at the time the Security is authenticated and delivered, the Security shall nevertheless be valid.

 

(b)                        At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities and, if required pursuant to Section 3.01 with respect to the Securities of such series, a supplemental indenture or Company Order setting forth the terms of the Securities of such series. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the Company. The Company Order shall specify the amount of Securities to be authenticated and the date on which the original issue of such Securities is to be authenticated.

 

(c)                         In authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel, each prepared in accordance with Section 16.01, stating that the conditions precedent, if any, provided for in this Indenture which relate to such authentication have been complied with, and an Opinion of Counsel substantially to the effect that the form or forms and the terms of such Securities have been established in conformity with the provisions of this Indenture and that such Securities, when duly executed by the Company and duly authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to customary exceptions.

 

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(d)                        The Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of the Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

(e)                         Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect to the Securities of such series.

 

(f)                          Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be originally issued at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered only once prior to the authentication and delivery of the first Security of such series;

 

(g)                         If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or the applicable Security Custodian or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect (or to such other effect as may be required by such Depositary):

 

“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”

 

The aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided pursuant to this Indenture, or on a schedule to such Global Security.

 

(h)                        Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

 

(i)                            Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the

 

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Depositary or by the Security Custodian under such Global Security, and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.

 

(j)                           No Security 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 one of the forms provided for herein duly executed by the Trustee or by an Authenticating Agent by manual or facsimile signature of an authorized signatory of the Trustee, 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.

 

Section 3.04                              Temporary Securities .

 

(a)                        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 that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Any such temporary Security may be in the form of one or more Global Securities, representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed by the Company and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Security or Securities in lieu of which it is issued.

 

(b)                        If temporary Securities of any series are issued, the Company will cause definitive Securities of such 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 such temporary Securities at the office or agency of the Company in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor. 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.

 

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(c)                         Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.

 

Section 3.05                              Registrar .

 

(a)                        The Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register for the registration and the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Register”), as in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Company may have one or more co-Registrars; the term “Registrar” includes any co-registrar.

 

(b)                        The Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 11.01. The Company or any Affiliate thereof may act as Registrar, co-Registrar or transfer agent.

 

(c)                         The Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this Indenture, until such time as another Person is appointed as such.

 

Section 3.06                              Transfer and Exchange .

 

(a)                        Transfer .

 

(i)                            Upon surrender for registration of transfer of any Security of any series at the Registrar the Company shall execute, and the Trustee or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series for like aggregate principal amount of any authorized denomination or denominations. The transfer of any Security shall not be valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his, her or its attorney duly authorized in writing.

 

(ii)                         Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the Individual Securities

 

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represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

 

(b)                        Exchange .

 

(i)                            At the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender of the Securities to be exchanged at the Registrar.

 

(ii)                         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.

 

(c)                         Exchange of Global Securities for Individual Securities .  Except as provided below in this subsection (c), owners of beneficial interests in Global Securities will not be entitled to receive Individual Securities.

 

(i)                            Individual Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if: (A) at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, as applicable, or (B) the Company executes and delivers to the Trustee and the Registrar an Officer’s Certificate stating that such Global Security shall be so exchangeable.

 

In connection with the exchange of an entire Global Security for Individual Securities pursuant to this subsection (c), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual Securities of such series, shall authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Individual Securities of authorized denominations.

 

(ii)                         The owner of a beneficial interest in a Global Security will be entitled to receive an Individual Security in exchange for such interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from the Holder of a Global Security

 

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directing the Security Custodian and Registrar to (x) issue one or more Individual Securities in the amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent amount of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:

 

(A)                    the Security Custodian and Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and amount of such beneficial interest in such Global Security;

 

(B)                    the Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual Securities of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such beneficial interest in such Global Security; and

 

(C)                    the Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the event that the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request from the Holder of a Global Security to issue such Individual Securities, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial owner of Securities to pursue such remedy with respect to the portion of the Global Security that represents such beneficial owner’s Securities as if such Individual Securities had been issued.

 

(iii)                      If specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,

 

(A)                    to each Person specified by such Depositary a new Individual Security or new Individual Securities of the same series, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and

 

(B)                    to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the

 

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aggregate principal amount of Individual Securities delivered to Holders thereof.

 

(iv)                     In any exchange provided for in clauses (i) through (iii), the Company will execute and the Trustee will authenticate and deliver Individual Securities in registered form in authorized denominations.

 

(v)                        Upon the exchange in full of a Global Security for Individual Securities, such Global Security shall be canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

(d)                        All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer or exchange.

 

(e)                         Every Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by such Holder’s attorney duly authorized in writing.

 

(f)                          No service charge will be made for any registration of transfer or exchange of Securities. The Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Company’s own expense or without expense or charge to the Holders.

 

(g)                         The Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for redemption under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

(h)                        Prior to the due presentation for registration of transfer or exchange of any Security, the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any of their agents shall deem and treat the Person in whose name a Security is registered as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for all purposes whatsoever, and none of the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any of their agents shall be affected by any notice to the contrary.

 

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(i)                            In case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant to Article XIV, any of the Securities authenticated or delivered pursuant to such transaction may, from time to time, at the request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver Securities as specified in such order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this Section 3.06 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities authenticated and delivered in such new name.

 

(j)                           Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities laws.

 

(k)                        The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any 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, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

(l)                            Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.

 

Section 3.07                              Mutilated, Destroyed, Lost and Stolen Securities .

 

(a)                        If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the Company nor the Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously outstanding, that neither gain nor loss in interest shall result from such exchange or substitution. In every case, the applicant for a replacement Security shall furnish the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless.

 

(b)                        In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.

 

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(c)                         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 respect thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

(d)                        Every new Security of any series issued pursuant to this Section shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

(e)                         The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 3.08                              Payment of Interest; Interest Rights Preserved .

 

(a)                        Interest on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Register or, in accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the Holder.

 

(b)                        Any interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his, her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:

 

(i)                            The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “Special Record Date”), 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 such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 calendar days and not less than

 

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10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the Company gives to the Trustee the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record Date and, in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to the Holders of such Securities not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been given as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).

 

(ii)                         The Company may make payment of any Defaulted Interest on Securities 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.

 

(c)                         Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 3.09                              Cancellation .  Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered for payment, redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered to the Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities held by it in accordance with its then customary procedures and deliver a certificate of such disposal to the Company upon its request therefor. The acquisition of any Securities by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such Securities are surrendered to the Trustee for cancellation.

 

Section 3.10                              Computation of Interest .  Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

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Section 3.11                              Currency of Payments in Respect of Securities .

 

(a)                        Except as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium, if any, and interest on Securities of such series will be made in U.S. Dollars.

 

(b)                        For purposes of any provision of this Indenture where the Holders of Outstanding Securities may perform an action that requires that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on the Securities of all series in respect of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on the Outstanding Securities denominated in a Foreign Currency will be the amount in U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01 for Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or as of the date of such decision or determination by the Trustee, as the case may be.

 

(c)                         Any decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Company; provided, that such agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Company at the time of such appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section 3.01 for the making of such decision or determination. All decisions and determinations of such agent regarding exchange rates shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders of the Securities.

 

Section 3.12                              Judgments .  The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S. Dollars (the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the essence and agrees that, to the fullest extent possible under applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency of the principal of and premium, if any, and interest on such Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other Currency (after any premium and cost of exchange) on the business day in the country of issue of the Designated Currency or in the international banking community (in the case of a composite currency) immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and (d) any obligation of the Company  not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.

 

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Section 3.13                              CUSIP Numbers .  The Company in issuing any Securities of a series may use CUSIP numbers, ISINs or other similar numbers, if then generally in use, and thereafter, with respect to such series, the Trustee may use such numbers in any notice (including any notice of redemption or exchange) with respect to such series provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice, redemption or exchange shall not be affected by any defect in or omission of such numbers. The Company will notify the Trustee of any change in the CUSIP numbers, ISINs or other similar numbers with respect to any such series.

 

ARTICLE IV

 

REDEMPTION OF SECURITIES

 

Section 4.01                              Applicability of Right of Redemption . Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for Securities of any series) in accordance with this Article; provided, however, that if any such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.

 

Section 4.02                              Selection of Securities to be Redeemed .

 

(a)                        If the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at least 30 days prior to the Redemption Date fixed by the Company give notice (in the form of an Officer’s Certificate) to the Trustee of such Redemption Date and of the principal amount of the Securities of such series to be redeemed (provided that, if the Company is requesting in accordance with Section 4.03(a) that the Trustee give the notice of redemption to the Holders of Securities of such series to be redeemed, the Company shall give the notice to the Trustee required by this Section 4.02(a) at least five Business Days before the date on which such notice to the Holders is to be given, unless a shorter period shall be satisfactory to the Trustee, and such notice to the Trustee shall include the information required to be included in such notice to the Holders pursuant to Section 4.03(b)), and, if less than all of the Securities of such series are to be redeemed, thereupon the Trustee shall select the particular Securities of such series to be redeemed from the Outstanding Securities of such Series not theretofore called for redemption by lot or in such other manner as the Trustee shall deem appropriate, subject to the Applicable Procedures, and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. In any case where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate principal amount so registered as if it were represented by one Security of such series. The Trustee shall, as soon as practicable, notify the Company in writing of the Securities and portions of Securities so selected.

 

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(b)                        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 that has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company or any Affiliate or any Subsidiary thereof shall not be included in the Securities selected for redemption.

 

Section 4.03                              Notice of Redemption .

 

(a)                        Notice of redemption shall be given by the Company or, at the Company’s request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) before the date on which such notice to the Holders is to be given, by the Trustee in the name and at the expense of the Company, not less than 30 nor more than 60 days prior to the Redemption Date, to the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner provided in Section 16.03. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Failure to give such notice, or any defect in such notice to the Holder of any Security of a series designated for redemption, in whole or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder of any other Security of such series.

 

(b)                        All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, ISINs or other similar numbers, if available) and shall state:

 

(i)                            such election by the Company to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms of the Securities of such series or a supplemental indenture establishing such series, if such be the case;

 

(ii)                         the Redemption Date;

 

(iii)                      the Redemption Price or, if the Redemption Price is not then known, the manner of calculation thereof;

 

(iv)                     if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the Securities of such series to be redeemed;

 

(v)                        that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that, if applicable, interest thereon shall cease to accrue on and after said date;

 

(vi)                     the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price;

 

(vii)                  that the redemption is for a sinking fund, if such is the case; and

 

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(viii)                         that no representation is made as to the correctness or accuracy of the CUSIP number, ISIN or other similar numbers, if any, listed in such notice or printed on the Securities.

 

(c)                         If the Redemption Price is not known at the time such notice is to be given, the actual Redemption Price, calculated as described in the terms of the Securities, will be set forth in an Officer’s Certificate delivered to the Trustee no later than two Business Days prior to the Redemption Date.

 

Section 4.04                              Deposit of Redemption Price .  On or prior to 11:00 a.m., New York City time, on the Redemption Date for any Securities, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided pursuant to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on that date.

 

Section 4.05                              Securities Payable on Redemption Date .  Notice of redemption having been given as aforesaid, any Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall Default in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that (unless otherwise provided pursuant to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities shall be payable according to the terms of such Securities and the provisions of Section 3.08.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

Section 4.06                              Securities Redeemed in Part .  Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust Office or such other office or agency of the Company as is specified pursuant to Section 3.01 with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or such Holder’s 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, of like tenor and form, 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; except that if a Global Security is so redeemed, the balance of such Global Security shall be reduced in accordance with the Applicable Procedures. In the case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.

 

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ARTICLE V

 

SINKING FUNDS

 

Section 5.01                              Applicability of Sinking Fund .

 

(a)                        Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms of such series of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise specified pursuant to Section 3.01 for Securities of such series, provided, however, that if any such terms of a series of Securities shall conflict with any provision of this Article, the terms of such series shall govern.

 

(b)                        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 5.02.

 

Section 5.02                              Mandatory Sinking Fund Obligation .  The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable form theretofore purchased or otherwise acquired by the Company or redeemed at the election of the Company pursuant to Section 4.03 or (b) receiving credit for Securities of such series (not previously so credited) acquired by the Company and theretofore delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to 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. If the Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate the Securities (and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore delivered) in transferable form. In case of the failure of the Company, at or before the time so required, to give such notice and deliver such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.

 

Section 5.03                              Optional Redemption at Sinking Fund Redemption Price .  In addition to the sinking fund requirements of Section 5.02, to the extent, if any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund Payment with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that the right of the Company to make such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities of the same series. If the Company intends to exercise its right to make such optional payment in any year it shall deliver to the Trustee not less than 45 days (or such shorter period as shall be satisfactory to the Trustee) prior to the relevant sinking

 

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fund payment date an Officer’s Certificate stating that the Company will exercise such optional right, and specifying the amount which the Company will pay on or before the next succeeding sinking fund payment date. Such Officer’s Certificate shall also state that no Event of Default has occurred and is continuing.

 

Section 5.04                              Application of Sinking Fund Payment .

 

(a)                        If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series of Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000 (or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall be a sinking fund payment date, in which case such payment shall be applied on such sinking fund payment date, to the redemption of Securities of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in Section 4.02, for redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb said funds, as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption of the Securities to be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the option of the Company, except that the notice of redemption shall also state that the Securities are being redeemed for the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking fund payment received in funds by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 5.04. Any and all sinking fund moneys held by the Trustee on the last sinking fund payment date with respect to Securities of such series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee to the payment of the principal of the Securities of such series at Maturity.

(b)                        On or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but not including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.

 

(c)                         The Trustee shall not redeem any Securities of a series with sinking fund moneys or give any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which a Responsible Officer of the Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have been given in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose shall be deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund at the time any such Default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of all the Securities of such series; provided, however, that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on

 

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the next sinking fund payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.

 

ARTICLE VI

 

PARTICULAR COVENANTS OF THE COMPANY

 

The Company hereby covenants and agrees as follows:

 

Section 6.01                              Payments of Securities .  The Company will duly and punctually pay the principal of and premium, if any, on each series of Securities, and the interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities and in this Indenture. Except as otherwise specified pursuant to Section 3.01 for Securities of any series (and, if so specified in a Company Order and not a supplemental indenture, as agreed with the Trustee), (a) the Company shall be responsible for making calculations called for under the Securities, including but not limited to determination of Redemption Price, premium, if any, and any additional amounts or other amounts payable on the Securities; (b) the Company will make such calculations in good faith and, absent manifest error, such calculations will be final and binding on the Holders; and (c) the Company will provide a schedule of such calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of such calculations without independent verification.

 

Section 6.02                              Paying Agent .

 

(a)                        The Company will maintain in each Place of Payment for any series of Securities, if any, an office or agency where Securities may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served (the “Paying Agent”). The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and demands.

 

(b)                        The Company may also from time to time designate different or additional offices or agencies where the Securities of any series may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind any such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation and of any change in the location of any such different or additional office or agency. The Company shall enter into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.

 

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Section 6.03                              To Hold Payment in Trust .

 

(a)                        If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on or before the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their terms or as a result of the calling thereof for redemption shall become payable, the Company or such Affiliate will segregate and hold in trust for the benefit of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and premium, if any, or interest which shall have so become payable until such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will notify the Trustee of its action or failure to act in that regard. Upon any proceeding under any federal bankruptcy laws with respect to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent.

 

(b)                        If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or interest on any series of Securities, then prior to 11:00 a.m., New York City time, on the date on which the principal of and premium, if any, or interest on any of the Securities of that series shall become payable as aforesaid, whether by their terms or as a result of the calling thereof for redemption, the Company will deposit with such Paying Agent a sum sufficient to pay such principal and premium, if any, or interest, such sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and (unless such Paying Agent is the Trustee), the Company or any other obligor of such Securities will promptly notify the Trustee of its payment or failure to make such payment.

 

(c)                         If the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent 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 6.03, that such Paying Agent shall:

 

(i)                            hold all moneys held by it for the payment of the principal of and premium, if any, or interest on the Securities of that series in trust for the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed of as herein provided;

 

(ii)                         give to the Trustee notice of any Default by the Company or any other obligor upon the Securities of that series in the making of any payment of the principal of and premium, if any, or interest on the Securities of that series; and

 

(iii)                      at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so held in trust by such Paying Agent.

 

(d)                        Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release, satisfaction or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or by any Paying Agent other than the Trustee as required by this Section 6.03,

 

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such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent.

 

(e)                         Subject to applicable abandoned property law, 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 and premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Company upon Company Order along with any interest that has accumulated thereon as a result of such money being invested at the direction of the Company, or (if then held by the Company) shall be discharged from such trust, and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment of such amounts without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 6.04                              Merger, Consolidation and Sale of Assets .  Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities:

 

(a)                        The Company will not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its assets to any other Person, unless (i) the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall expressly assume, by indenture supplemental hereto, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Securities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company; (ii) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing; and (iii) if there be Outstanding Securities of any series to which this Section 6.04(a) applies, the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease and, if applicable, such supplemental indenture comply with the terms of this Section 6.04(a). Clause (ii) of the immediately-preceding sentence shall not apply to (A) any sale, conveyance, transfer or lease between or among the Company and one or more Wholly Owned Subsidiaries of the Company, (B) any merger of the Company into any Wholly Owned Subsidiary of the Company or (C) any merger of the Company into an Affiliate of the Company solely for the purpose of the Company reincorporating or reorganizing in another jurisdiction.

 

(b)                        Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 6.04, the

 

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Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under this Indenture and the Securities, and from time to time such Person may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.04) shall be relieved of and discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.

 

Section 6.05                              Compliance Certificate .  Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, the Company shall furnish to the Trustee annually, within 120 days after the end of each fiscal year of the Company ended after the date hereof, a brief certificate from the principal executive officer, principal financial officer, or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture (which compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture) and, in the event of any Default, specifying each such Default and the nature and status thereof of which such person may have knowledge. Such certificates need not comply with Section 16.01 of this Indenture.

 

Section 6.06                              Conditional Waiver by Holders of Securities .  Anything in this Indenture to the contrary notwithstanding, the Company and the Guarantors may fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to any series of Securities if the Company shall have obtained and filed with the Trustee, prior to the time of such failure or omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, or impair any right consequent thereon and, until such waiver shall have become effective, the obligations of the Company and the Guarantors and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.

 

Section 6.07                              Statement by Officers as to Default .  The Company shall deliver to the Trustee as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default and the action which the Company proposes to take with respect thereto.

 

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ARTICLE VII

 

REMEDIES OF TRUSTEE AND SECURITYHOLDERS

 

Section 7.01                              Events of Default .  Except where otherwise indicated by the context or where the term is otherwise defined for a specific purpose, the term “Event of Default” as used in this Indenture with respect to Securities of any series shall mean one of the following described events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the manner contemplated in Section 3.01:

 

(a)                        the failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become due and payable, which failure shall have continued unremedied for a period of 30 days;

 

(b)                        the failure of the Company to pay the principal of (and premium, if any, on) any Security of such series, when and as the same shall become due and payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), by declaration as authorized by this Indenture or otherwise;

 

(c)                         the failure of the Company to pay a sinking fund installment, if any, when and as the same shall become due and payable by the terms of a Security of such series, which failure shall have continued unremedied for a period of 30 days;

 

(d)                        the failure of the Company, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this Indenture (including any indenture supplemental hereto pursuant to which the Securities of such series were issued as contemplated by Section 3.01) (other than a covenant or agreement which has been expressly included in this Indenture solely for the benefit of a series of Securities other than that series and other than a covenant or agreement a default in the performance of which is elsewhere in this Section 7.01 specifically addressed), which failure shall not have been remedied, and without provision deemed to be adequate for the remedying thereof having been made, for a period of 90 days after written notice shall have been given to the Company by the Trustee or shall have been given to the Company and the Trustee by Holders of 25% or more in aggregate principal amount of the Securities of such series then Outstanding, specifying such failure, requiring the Company to remedy the same and stating that such notice is a “Notice of Default” hereunder;

 

(e)                         the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary case under the United States federal bankruptcy laws, as now or hereafter constituted, or any other applicable United States federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or of substantially all the property of the Company or ordering the winding-up or liquidation of its affairs, which decree or order shall have remained unstayed and in effect for a period of 90 consecutive days;

 

(f)                          the commencement by the Company of a voluntary case under the United States federal bankruptcy laws, as now or hereafter constituted, or any other applicable

 

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United States federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Company to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Company or of substantially all the property of the Company or the making by it of an assignment for the benefit of creditors or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or

 

(g)                         the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01;

 

provided, however, that no event described in clause (d) or (other than with respect to a payment default) (g) above shall constitute an Event of Default hereunder until a Responsible Officer of the Trustee has actual knowledge thereof or until a written notice of any such event is received by the Trustee at the Corporate Trust Office, and such notice refers to the facts underlying such event, the Securities generally, the Company and this Indenture.

 

Notwithstanding the foregoing provisions of this Section 7.01, if the principal or any premium or interest on any Security is payable in Foreign Currency and such Foreign Currency is not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in U.S. Dollars in an amount equal to the equivalent in U.S. Dollars of the amount payable in such Foreign Currency, as determined by the Company’s agent in accordance with Section 3.11(c) hereof by reference to the noon buying rate in The City of New York for cable transfers for such Foreign Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate, and any payment made under such circumstances in U.S. Dollars where the required payment is in a Foreign Currency will not constitute an Event of Default under this Indenture.

 

Section 7.02                              Acceleration; Rescission and Annulment .

 

(a)                        Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such Event of Default, the Trustee or the Holders of 25% or more in principal amount of the Securities of such series then Outstanding may declare the principal (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of and all accrued but unpaid interest (if any) on all the Securities of such series then Outstanding 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 (or specified amount) and accrued but unpaid interest (if any) shall become immediately due and payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs and is continuing with respect to Securities of any series at the time Outstanding,

 

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then, in every such case, the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of and all accrued but unpaid interest (if any) on all of the Securities of such series then Outstanding shall automatically, and without any declaration or any other action on the part of the Trustee or any Holder, become due and payable immediately. Upon payment of such amounts in the Currency in which such Securities are denominated (subject to Section 7.01 and except as otherwise provided pursuant to Section 3.01), all obligations of the Company in respect of the payment of principal of and interest on the Securities of such series shall terminate.

 

(b)                        The provisions of Section 7.02(a) are subject to the condition that, at any time after the principal of all the Securities of such series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to be due and payable, and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Event of Default giving rise to such declaration of acceleration shall, without further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if:

 

(i)                            the Company has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities are denominated (subject to Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to pay

 

(A)                    all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a) (provided, however, that all sums payable under this clause (A) shall be paid in U.S. Dollars);

 

(B)                    all arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall be legally enforceable, on any overdue installment of interest at the rate borne by such Securities at the rate or rates prescribed therefor in such Securities); and

 

(C)                    the principal of and premium, if any, on any Securities of such series that have become due otherwise than by such declaration of acceleration and interest thereon; and

 

(ii)                         every other Default and Event of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.06.

 

(c)                         No such rescission shall affect any subsequent Default or impair any right consequent thereon.

 

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(d)                        For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.

 

Section 7.03                              Other Remedies .  If the Company shall fail for a period of 30 days to pay any installment of interest on the Securities of any series or shall fail to pay the principal of and premium, if any, on any of the Securities of such series when and as the same shall become due and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking fund), by declaration as authorized by this Indenture, or otherwise, or shall fail for a period of 30 days to make any required sinking fund payment as to a series of Securities, then, except as otherwise provided as contemplated by Section 3.01 with respect to Securities of such series, upon demand of the Trustee, the Company will pay to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding the whole amount which then shall have become due and payable on all the Securities of such series, with interest on the overdue principal and premium, if any, and (so far as the same may be legally enforceable) on the overdue installments of interest at the rate borne by the Securities of such series, and all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a).

 

In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon the Securities of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon the Securities of such series, wherever situated, in the manner provided by law. Every recovery in any such action or other proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall be the subject of such action or proceeding. All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee without the possession of any of the Securities and without the production of any thereof at any trial or any proceeding relative thereto.

 

Section 7.04                              Trustee as Attorney-in-Fact .  The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving and holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder, with authority to make or file (whether or not the Company shall be in Default in respect of the payment of the principal of, or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall deem advisable, in any receivership, insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding relative to the Company or any other obligor upon the Securities or to their respective creditors or property, any and all

 

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