Funding Corp may elect to make payment of all or any portion of such defaulted principal or interest to the Persons in whose names the Notes (or their respective predecessor Notes) in respect of which principal or interest is in default are registered at the close of business on a Special Record Date for the payment of such defaulted principal or interest, which shall be fixed in the following manner: Funding Corp. shall notify the Trustee and the Paying Agent in writing of the amount of defaulted principal or interest proposed to be paid on each Note and the date of the proposed payment, and concurrently there shall be deposited with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted principal or interest or there shall be made 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 principal or interest as provided in this paragraph. Thereupon Funding Corp. shall fix a Special Record Date for the payment of such defaulted principal or interest (together with other amounts payable with respect to such defaulted principal or interest) which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. Funding Corp. shall promptly notify the Trustee and the Note Registrar of such Special Record Date and shall direct the Note Registrar to immediately provide notice of the proposed payment of such defaulted principal or interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder of a Note at his address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such defaulted principal or interest and the Special Record Date therefor having been mailed as aforesaid, such defaulted principal or interest shall be paid to the Persons in whose names the Notes (or their respective predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following paragraph (b).
Funding Corp may make, or cause to be made, payment of any defaulted principal or interest (together with other amounts payable with respect to such defaulted interest) in any other lawful manner not inconsistent with the requirements of any securities exchange (if any) on which the Notes in respect of which principal or interest is in default may be listed, and upon such notice as may be required by such exchange, if, after notice given by Funding Corp. to the Trustee of the proposed payment pursuant to this paragraph, such payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 2.12, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note, and each such Note shall bear interest from whatever date shall be necessary so that neither gain nor loss in interest shall result, from such registration of transfer, exchange or replacement.
Funding Corp hereby covenants and agrees that for so long as any Notes are outstanding hereunder, Funding Corp. shall observe and perform all of the covenants of Funding Corp. contained in Article V of the Common Agreement (which covenants are incorporated by reference herein as if fully set forth herein).
Funding Corp shall file with the Trustee and the SEC, and transmit to the Holders, such information, documents and other reports and such summaries thereof, as may be required pursuant to the TIA and the rules and regulations of the SEC at the times and in the manner provided pursuant thereto. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including Funding Corp.'s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates). Funding Corp. shall at all times comply with TIA Section 314(a).
Funding Corp shall furnish to the Trustee, within 120 days after the end of each fiscal year of Funding Corp., an Officer's Certificate (i) as to such Person's knowledge of Funding Corp.'s compliance with all conditions and covenants under this Indenture, such compliance to be determined without regard to any period of grace or other requirement of notice provided under this Indenture, and (ii) stating that, to such Authorized Officer's knowledge, no non-compliance has occurred during the preceding fiscal year and no non-compliance exists as of the date of such Officer's Certificate (or if non-compliance has occurred during the preceding fiscal year or exists as of the date of such Officer's Certificate, describing all such non-compliance and what action Funding Corp. is taking or proposes to take with respect thereto).
Funding Corp will furnish to the Collateral Agent and the Trustee on July 1 in each year beginning with July 1, 2006, an Opinion of Counsel, dated as of such date, either:
Funding Corp will otherwise comply with the provisions of TIA Section 314(b).
Funding Corp will pay to the Trustee and any Authorized Agent from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. Funding Corp. will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements, and expenses of the Trustee's agents and counsel.
Funding Corp will indemnify the Trustee against any and all losses, liabilities or expenses (including reasonable attorneys fees) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against Funding Corp. (including this Section 9.6) and defending itself against any claim (whether asserted by Funding Corp. or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee will notify Funding Corp. promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify Funding Corp. will not relieve Funding Corp. of its obligations hereunder.
Funding Corp shall give written notice of any such appointment to all Holders as their names and addresses appear on the Note Register.
