EXHIBIT 4.1
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CELLCO PARTNERSHIP
and
VERIZON WIRELESS CAPITAL LLC,
Issuers
and
First Union National Bank,
Trustee
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INDENTURE
Dated as of December 17, 2001
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CELLCO PARTNERSHIP
and
VERIZON WIRELESS CAPITAL LLC
Reconciliation and tie showing the location in the Indenture dated as of
December 17, 2001 of the provisions inserted pursuant to Sections 310 to 318(a),
inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture Section
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Section 310 (a)(1) .......................................... 609
(a)(2) .......................................... 609
(a)(3) .......................................... Not Applicable
(a)(4) .......................................... Not Applicable
(b) ............................................. 608
............................................. 610(d)
(c) ............................................. Not Applicable
Section 311 (a) ............................................. 613
(b) ............................................. 613
(c) ............................................. Not Applicable
Section 312 (a) ............................................. 701
............................................. 702(a)
(b) ............................................. 702(b)
(c) ............................................. 702(c)
Section 313 (a) ............................................. 703(a)
(b) ............................................. 703(b)
(c) ............................................. 703(a) and 703(b)
(d) ............................................. 703(b)
Section 314 (a) ............................................. 704
(b) ............................................. Not Applicable
(c) ............................................. 102
(c)(1) .......................................... 102
(c)(2) .......................................... 102
(c)(3) .......................................... Not Applicable
(d) ............................................. Not Applicable
(e) ............................................. 102
Section 315 (a) ............................................. 601(a)
(b) ............................................. 602
(c) ............................................. 601(b)
(d) ............................................. 601(c)
(d)(1) .......................................... 601(a)(1)
(d)(2) .......................................... 601(c)(2)
(d)(3) .......................................... 601(c)(3)
(e) ............................................. 514
Section 316 (a)(1)(A) ....................................... 512
(a)(1)(B) ....................................... 513
(a)(2) .......................................... Not Applicable
(b) ............................................. 508
Section 317 (a)(1) .......................................... 503
(a)(2) .......................................... 504
(b) ............................................. 1003
Section 318 (a) ............................................. 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
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PARTIES ................................................................................. 1
RECITALS ................................................................................ 1
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 101. Definitions ................................................................ 1
SECTION 102. Compliance Certificates and Opinions ....................................... 13
SECTION 103. Form of Documents Delivered to Trustee ..................................... 14
SECTION 104. Acts of Holders ............................................................ 14
SECTION 105. Notices, Etc., to Trustee and Issuers ...................................... 16
SECTION 106. Notice to Holders; Waiver .................................................. 17
SECTION 107. Conflict with Trust Indenture Act .......................................... 17
SECTION 108. Effect of Headings and Table of Contents ................................... 18
SECTION 109. Successors and Assigns ..................................................... 18
SECTION 110. Separability Clause ........................................................ 18
SECTION 111. Benefits of Indenture ...................................................... 18
SECTION 112. Governing Law .............................................................. 18
SECTION 113. Non-Business Day ........................................................... 18
SECTION 114. Immunity of Partners, Members, Incorporators, Stockholders, Officers
and Directors ............................................................ 19
SECTION 115. Certain Matters Relating to Currencies ..................................... 19
SECTION 116. Language of Notices, Etc. .................................................. 19
ARTICLE II
Security Forms
SECTION 201. Forms of Securities ........................................................ 20
SECTION 202. Form of Trustee's Certificate of Authentication ............................ 21
SECTION 203. Securities in Global Form .................................................. 21
SECTION 204. Legends .................................................................... 22
ARTICLE III
The Securities
SECTION 301. Title; Payment and Terms ................................................... 24
SECTION 302. Denominations and Currencies ............................................... 28
SECTION 303. Execution, Authentication, Delivery and Dating ............................. 28
SECTION 304. Temporary Securities and Exchange of Securities ............................ 30
SECTION 305. Registration, Registration of Transfer and Exchange ........................ 33
SECTION 306. Additional Provisions Applicable to Transfer and Exchange of
Restricted Securities .................................................... 37
SECTION 307. Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors ....................................... 39
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SECTION 308. Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S ................................................ 40
SECTION 309. Mutilated, Destroyed, Lost and Stolen Securities and Coupons ............... 41
SECTION 310. Payment of Interest; Interest Rights Preserved ............................. 43
SECTION 311. Persons Deemed Owners ...................................................... 44
SECTION 312. Cancellation ............................................................... 45
SECTION 313. Computation of Interest .................................................... 45
SECTION 314. Currency and Manner of Payments in Respect of Securities ................... 46
SECTION 315. Appointment and Resignation of Currency Determination Agent ................ 48
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Option to Effect Legal Defeasance or Covenant Defeasance ................... 49
SECTION 402. Legal Defeasance and Discharge ............................................. 49
SECTION 403. Covenant Defeasance ........................................................ 50
SECTION 404. Conditions to Legal or Covenant Defeasance ................................. 50
SECTION 405. Satisfaction and Discharge of Indenture .................................... 51
SECTION 406. Survival of Certain Obligations ............................................ 52
SECTION 407. Acknowledgment of Discharge by Trustee ..................................... 53
SECTION 408. Application of Trust Moneys ................................................ 53
SECTION 409. Repayment to the Issuers; Unclaimed Money .................................. 53
SECTION 410. Reinstatement .............................................................. 54
ARTICLE V
Remedies
SECTION 501. Events of Default. ......................................................... 54
SECTION 502. Acceleration of Maturity; Rescission and Annulment ......................... 55
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee ............ 56
SECTION 504. Trustee May File Proofs of Claim ........................................... 57
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons ................................................................. 58
SECTION 506. Application of Money Collected ............................................. 59
SECTION 507. Limitation on Suits ........................................................ 59
SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium, if
any) and Interest, if any ............................................... 60
SECTION 509. Restoration of Rights and Remedies ......................................... 60
SECTION 510. Rights and Remedies Cumulative ............................................. 60
SECTION 511. Delay or Omission Not Waiver ............................................... 60
SECTION 512. Control by Holders ......................................................... 61
SECTION 513. Waiver of Past Defaults .................................................... 61
SECTION 514. Undertaking for Costs ...................................................... 61
SECTION 515. Waiver of Stay or Extension Laws ........................................... 62
SECTION 516. Judgment Currency .......................................................... 62
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ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities ........................................ 63
SECTION 602. Notice of Defaults ......................................................... 64
SECTION 603. Certain Rights of Trustee .................................................. 64
SECTION 604. Not Responsible for Recitals or Issuance of Securities ..................... 65
SECTION 605. May Hold Securities ........................................................ 65
SECTION 606. Money Held in Trust ........................................................ 65
SECTION 607. Compensation and Reimbursement ............................................. 66
SECTION 608. Disqualification; Conflicting Interests .................................... 66
SECTION 609. Corporate Trustee Required; Different Trustees for Different Series;
Eligibility .............................................................. 66
SECTION 610. Resignation and Removal; Appointment of Successor .......................... 67
SECTION 611. Acceptance of Appointment by Successor ..................................... 68
SECTION 612. Merger, Conversion, Consolidation or Succession to Business ................ 69
SECTION 613. Preferential Collection of Claims Against Issuers .......................... 70
SECTION 614. Authenticating Agents ...................................................... 70
ARTICLE VII
Holders' Lists and Reports by Trustee and Issuers
SECTION 701. Issuers to Furnish Trustee Names and Addresses of Holders .................. 72
SECTION 702. Preservation of Information; Communications to Holders ..................... 72
SECTION 703. Reports by Trustee ......................................................... 73
SECTION 704. Reports by Issuers ......................................................... 74
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
SECTION 801. Issuers May Consolidate, Etc., Only on Certain Terms ....................... 75
SECTION 802. Successor Corporation Substituted .......................................... 76
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders ......................... 76
SECTION 902. Supplemental Indentures With Consent of Holders ............................ 77
SECTION 903. Execution of Supplemental Indentures ....................................... 79
SECTION 904. Effect of Supplemental Indentures .......................................... 79
SECTION 905. Conformity With Trust Indenture Act ........................................ 79
SECTION 906. Reference in Securities to Supplemental Indentures ......................... 79
ARTICLE X
Covenants
SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any ............ 79
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SECTION 1002. Maintenance of Office or Agency ........................................... 80
SECTION 1003. Money for Securities Payments To Be Held in Trust ......................... 81
SECTION 1004. Lien on Assets ............................................................ 82
SECTION 1005. Waiver of Certain Covenants ............................................... 83
SECTION 1006. Payment of Additional Amounts ............................................. 83
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of This Article ............................................. 86
SECTION 1102. Election to Redeem; Notice to Trustee ..................................... 86
SECTION 1103. Selection by Trustee of Securities to Be Redeemed ......................... 86
SECTION 1104. Notice of Redemption ...................................................... 87
SECTION 1105. Deposit of Redemption Price ............................................... 88
SECTION 1106. Securities Payable on Redemption Date ..................................... 88
SECTION 1107. Securities Redeemed in Part ............................................... 89
SECTION 1108. Tax Redemption; Special Tax Redemption .................................... 89
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of This Article ............................................. 92
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities ..................... 92
SECTION 1203. Redemption of Securities for Sinking Fund ................................. 92
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called ................................. 93
SECTION 1302. Call, Notice and Place of Meetings ........................................ 93
SECTION 1303. Persons Entitled to Vote at Meetings ...................................... 94
SECTION 1304. Quorum; Action ............................................................ 94
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings ....... 95
SECTION 1306. Counting Votes and Recording Action of Meetings ........................... 95
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EXHIBITS Page
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EXHIBIT A Form of Certificate To Be Delivered to Euroclear or Clearstream
by a Beneficial Owner of Securities, in Order to Receive a
Definitive Bearer Security in Exchange for an Interest in a
Temporary Global Security or to Exchange an Interest in a
Temporary Global Security for an Interest in a Permanent Global
Security.
EXHIBIT B Form of Certificate To Be Given to the Appropriate Trustee by
Euroclear or Clearstream Regarding the Exchange of a Temporary
Global Security for Definitive Securities or for a Portion of a
Permanent Global Security.
EXHIBIT C Form of Certificate To Be Delivered to Euroclear or Clearstream
by a Beneficial Owner of Securities, in Order to Receive Payment
on a Temporary Global Security.
EXHIBIT D Form of Certificate To Be Given to the Appropriate Trustee by
Euroclear or Clearstream Regarding Payment on a Temporary Global
Security.
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INDENTURE, dated as of December 17, 2001, among CELLCO PARTNERSHIP, a
general partnership existing under the laws of Delaware and having its principal
office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
called the "Partnership"), VERIZON WIRELESS CAPITAL LLC, a limited liability
company existing under the laws of Delaware and having its principal executive
office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
called "Capital" and, together with the Partnership, the "Issuers") and First
Union National Bank, a banking association organized and existing under the laws
of the United States of America, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE ISSUERS
The Issuers deem it necessary to issue from time to time for lawful
purposes securities (hereinafter called the "Securities") evidencing their
unsecured indebtedness and have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to have such titles, to bear such rates of
interest, to mature at such time or times and to have such other provisions as
shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement, in
accordance with its terms, have been done, and the Issuers propose to do all
things necessary to make the Securities, when executed by the Issuers and
authenticated and delivered by the Trustee hereunder and duly issued by the
Issuers, the valid obligations of the Issuers as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, the Issuers covenant and agree with the Trustee, for the
equal and proportionate benefit of all Holders of the Securities or series
thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP, and the term "GAAP" with
respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date or
time of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article III and Article VI, by their
headings, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affected Security" has the meaning specified in Section 1108(b).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"applicants" has the meaning specified in Section 702(b).
"Authenticating Agent" means any Person authorized to authenticate and
deliver Securities on behalf of the Trustee for the Securities of any series
pursuant to Section 614.
"Authorized Newspapers" means a newspaper customarily published at least
once a day for at least five days in each calendar week and of general
circulation in New York City and in London and, to the extent the Securities are
listed on the Stock Exchange and the Stock Exchange shall so require, in
Luxembourg or, if it shall be impracticable in the opinion of the Trustee for
the Securities of the appropriate series to make such publication, in another
capital city in Western Europe. Such publication (which may be in different
newspapers) is expected to be made in the Eastern edition of The Wall Street
Journal, in the London edition of the Financial Times and in the Luxemburger
Wort.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board", when used with reference to the Partnership, means its board of
representatives, or any duly authorized committee thereof or any member or
members of such board (or, if such board shall cease to exist, its managing
general partner) or any officer, employee or employees of the Partnership to
whom such board or committee shall have duly delegated its authority; or, when
used with reference to Capital, means its member or any officer or officers of
Capital to whom such member shall have duly delegated its authority.
"Board Resolution", when used with reference to the Partnership or Capital,
means written evidence of action taken by the Board of the Partnership or
Capital, as the case may be,
2
(or any officer duly delegated thereby) certified as accurately reflecting the
action taken and that the action is in full force and effect on the date of such
certification.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, with respect to Securities not denominated in Dollars,
the day is also not a day on which commercial banks are authorized or required
by law, regulation or executive order to close in the Principal Financial Center
of the country issuing the Foreign Currency or currency unit or, if the Foreign
Currency or currency unit is euro, the day is also a day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET)
System is open; provided, further, with respect to LIBOR Securities, that the
day is also a London Business Day.
"Capital" means Verizon Wireless Capital LLC, a Delaware limited liability
company, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Capital" shall mean such
successor.
"Capital Lease Obligations" means all obligations required to be classified
and accounted for as a capitalized lease under GAAP, and the amount of Debt
represented by such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Issuers. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in either Issuer or in any other obligor
upon the Securities of any series or in any affiliate of either Issuer or of
such other obligor, and (3) is not connected with either Issuer or such other
obligor or any affiliate of either Issuer or of such other obligor, as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions, but such firm may be the regular auditors employed
by either Issuer. Whenever it is herein provided that any Certificate of a Firm
of Independent Public Accountants shall be furnished to the Trustee for
Securities of any series, such Certificate shall state that the signer has read
this definition and that the signer is independent within the meaning hereof.
"Clearstream" means Clearstream Banking S.A., or its successor.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Component Currency" has the meaning specified in Section 314(e).
"Consolidated Net Tangible Assets" means, at any date of determination, the
sum of the amounts that would appear on a consolidated balance sheet of the
Partnership and its
3
Subsidiaries as the total assets of the Partnership and its Subsidiaries, after
deducting therefrom consolidated current liabilities of the Partnership and its
Subsidiaries (other than Partner Loans) and, to the extent otherwise included,
the amounts (without duplication) of unamortized goodwill, patents, trademarks,
service marks, trade names, copyrights, licenses and other intangible items.
"Conversion Event" means the unavailability of any Foreign Currency or
currency unit due to the imposition of exchange controls or other circumstances
beyond the Issuers' control.
"Corporate Trust Office" Except as otherwise provided with respect to a
series of Securities pursuant to Section 301, means the office of the Trustee
for Securities of any series at which at any particular time its corporate trust
business shall be administered, which office of the Trustee at the date of the
execution of this Indenture, is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Trust Administration PA 1249, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇.
"corporation" includes corporations, limited liability companies,
associations, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 403.
"Currency Determination Agent", with respect to Securities of any series,
means, unless otherwise specified in the Securities of any series, a New York
Clearing House bank designated pursuant to Section 301 or Section 315.
"Debt" means, with respect to any Person, without duplication,
(1) all indebtedness of such Person and its Subsidiaries for borrowed
money;
(2) all obligations of such Person and its Subsidiaries evidenced by
bonds, debentures, notes and other similar instruments;
(3) all Capital Lease Obligations of such Person and its Subsidiaries;
and
(4) all Debt of other Persons Guaranteed by such Person (including by
securing such Debt by a Lien on any asset of such Person, whether or not
such Debt is assumed by such person) to the extent so Guaranteed.
Reimbursement obligations in respect of letters of credit shall not constitute
Debt.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 310.
"Definitive IAI Security" has the meaning specified in Section 201.
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"Definitive Securities" means Securities issued in certificated (as opposed
to global) form.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, the Person designated as Depositary
by the Issuers pursuant to Section 301 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and 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 the Depositary with respect to the Securities of that series.
"Determination Notice" has the meaning specified in Section 1108(b).
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Election Date" has the meaning specified in Section 314(e).
"Euroclear" means Euroclear Bank S.A./N.V., or its successor, as operator
of the Euroclear system.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Securities" shall mean Securities issued in a transaction which
has been registered under the Securities Act in exchange for Restricted
Securities.
"Foreign Currency" means a currency issued and actively maintained as a
country's recognized unit of domestic exchange by the government of any country
other than the United States, and such term shall include the euro.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global IAI Security" has the meaning specified in Section 201.
"Global Securities" means Securities issued in global (as opposed to
certificated) form.
"Government Obligations" means securities which are (i) direct obligations
of the government which issued the currency in which the Securities of a
particular series are payable (or if the currency is the euro, direct
obligations of any country that uses the euro as its national currency) (except
as provided in Sections 314(b) and 314(d), in which case with respect to
Securities for which an election has occurred pursuant to Section 314(b), or a
Conversion Event
5
has occurred as provided in Section 314(d), such obligations shall be issued in
the currency or currency unit in which such Securities are payable as a result
of such election or Conversion Event) or (ii) obligations of a Person controlled
or supervised by or acting as an agency or instrumentality of the government
which issued the currency in which the Securities of such series are (or if the
currency is the euro, obligations of any such Person in any country that uses
the euro as its national currency) payable (except as provided in Sections
314(b) and 314(d), in which case with respect to Securities for which an
election has occurred pursuant to Section 314(b), or a Conversion Event has
occurred as provided in Section 314(d)), such obligations shall be issued in the
currency or currency unit in which such Securities are payable as a result of
such election or Conversion Event), the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and credit
obligations of such government payable in such currency and are not callable or
redeemable at the option of the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person; provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb shall have a corresponding meaning.
"Holder", when used with respect to any Security, means in the case of a
Registered Security the Person in whose name a Security is registered in the
Security Register, and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means any bearer thereof.
"IAI" has the meaning specified in Section 201.
"IAI Securities" means the collective reference to Global IAI Securities
and Definitive IAI Securities.
"Incur" means, with respect to any Debt, to incur, create, issue, assume or
Guarantee such Debt. If any Person becomes a Subsidiary on any date after the
Issue Date, the Debt of such Person outstanding on such date will be deemed to
have been Incurred by such Person on such date.
"Indenture" means this instrument 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
a particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security as to which the amount of payments of
principal, premium, if any, and/or interest, if any, due thereon is determined
with reference to the rate of exchange between the currency or currency unit in
which the Security is denominated and any other specified currency or currency
unit, to the relationship between two or more currencies or currency units, to
the price of one or more specified securities or commodities, to one or more
securities or commodities exchange indices or other indices or by other similar
methods or formulas, all as specified in accordance with Section 301; but shall
not include a LIBOR security.
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"interest", (i) when used with respect to an OID Security which by its
terms bears interest only after Maturity, means interest payable after Maturity
and (ii) includes any additional interest pursuant to the terms of any
registration rights agreement in connection with such Securities to the extent
specified pursuant to Section 301.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security specified for
that purpose as contemplated by Section 301.
"Issue Date" means the first date on which the Securities of a particular
series are originally issued under this Indenture.
"Issuer Request" and "Issuer Order", with reference to the Partnership or
Capital, mean a written request or order signed in the name of the Partnership
or Capital, as the case may be, by (1) its Chief Executive Officer, its
President, a Vice President (any reference herein to a Vice President of the
Partnership or Capital, as the case may be, shall be deemed to include any Vice
President of the Partnership or Capital, as the case may be, whether or not
designated by a number or a word or words added before or after the title "Vice
President"), Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Partnership or
Capital, as the case may be, or (2) by any other Person designated in an Issuer
Order of such Issue previously delivered to the Trustee for Securities of any
series by any of the foregoing officers.
"Judgment Date" has the meaning specified in Section 516.
"Legal Defeasance" has the meaning specified in Section 402.
"LIBOR" means, with respect to any series of Securities, the rate specified
as LIBOR for such Securities in accordance with Section 301.
"LIBOR Currency" means the currency specified pursuant to Section 301 as to
which LIBOR will be calculated or, if no currency is specified pursuant to
Section 301, Dollars.
"LIBOR Security" means any Security which bears interest at a floating rate
calculated with reference to LIBOR.
"Liens" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind, including any conditional sale or other title retention
agreement or lease in the nature thereof and including in connection with any
Capital Lease Obligation.
"London Business Day" means, with respect to any LIBOR Security, a day on
which commercial banks are open for business, including dealings in the LIBOR
Currency, in London.
"mandatory sinking fund payment" has the meaning specified in Section 1201.
"Market Exchange Rate" with respect to any Foreign Currency or currency
unit on any date means, unless otherwise specified in accordance with Section
301, the noon buying rate in The City of New York for cable transfers in such
Foreign Currency or currency unit as certified
7
for customs purposes by the Federal Reserve Bank of New York for such Foreign
Currency or currency unit.
"Maturity", when used with respect to any Security, means the date on which
the principal (or, if the context so requires, in the case of an OID Security, a
lesser amount or, in the case of an Indexed Security, an amount determined in
accordance with the specified terms of that Security) of that Security becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption, request for redemption,
repayment at the option of the Holder, pursuant to any sinking fund or
otherwise.
"Notice of Default" has the meaning specified in Section 501(3).
"Officer's Certificate", when used with reference to the Partnership or
Capital, means a certificate signed by the Chief Executive Officer, the
President, a Vice President (any reference herein to a Vice President of the
Partnership or Capital, as the case may be, shall be deemed to include any Vice
President of the Partnership or Capital, as the case may be, whether or not
designated by a number or a word or words added before or after the title "Vice
President"), the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of such Issuer, and
delivered to the Trustee for the Securities of any series.
"OID Security" means a Security which provides for an amount (excluding any
amounts attributable to accrued but unpaid interest thereon) less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Opinion of Counsel", means, for purposes of Section 1108, a written
opinion of independent legal counsel of recognized standing and, for all other
purposes hereof, means a written opinion of counsel, who may be an employee of
or counsel to either Issuer or may be other counsel satisfactory to the Trustee
for the Securities of any series.
"optional sinking fund payment" has the meaning specified in Section 1201.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such
Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption
money in the necessary amount and in the required currency or currency unit
has been theretofore deposited with the Trustee for such Securities or any
Paying Agent (other than an Issuer or any other obligor upon the
Securities) in trust or set aside and segregated in trust by either of the
Issuers or any other obligor upon the Securities (if either of the Issuers
or any other obligor upon the Securities shall act as its own Paying Agent)
for the Holders of such Securities; 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
therefore satisfactory to such Trustee has been made; and
8
(3) Securities which have been paid pursuant to Section 309 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 proof satisfactory to the
Trustee for such Securities that any such Securities are held by bona fide
holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) Securities
owned by either of the Issuers or any other obligor upon the Securities or any
Affiliate of either of the Issuers or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee for such Securities shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which such Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of such Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is neither of
either of the Issuers nor any other obligor upon the Securities or any Affiliate
of either of the Issuers or of such other obligor, (b) the principal amount of
an OID Security that shall be deemed to be Outstanding for such purposes 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 pursuant to
Section 502 and (c) the principal amount of a Security denominated in a Foreign
Currency or currency unit that shall be deemed to be outstanding for such
purposes shall be determined in accordance with Section 115.
"Partner Loans" means any Debt of the Partnership or any of its
Subsidiaries that is borrowed from any partner in the Partnership or any
affiliate thereof.
"Partnership" means Cellco Partnership, a Delaware general partnership,
until a successor shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Partnership" shall mean such successor.
"Paying Agent" means First Union National Bank or any other Person
authorized by the Issuers to pay the principal of (and premium, if any) or
interest, if any, on any Securities of any series on behalf of the Issuers.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by that
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 309 in lieu of a mutilated, destroyed,
lost or stolen Security or a Security to which a mutilated, destroyed, lost or
stolen coupon appertains shall be deemed to evidence the same debt as the
9
mutilated, lost, destroyed or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
"Principal Financial Center" means, unless otherwise specified in
accordance with Section 301:
(1) the capital city of the country issuing the Foreign Currency or
currency unit, except that with respect to Dollars, Australian dollars,
Canadian dollars, Deutsche marks, Dutch guilders, South African rand and
Swiss francs, the "Principal Financial Center" will be The City of New York
(unless the Issuer selects another location in the United States as its
Place of Payment), Sydney and Melbourne, Toronto, Frankfurt, Amsterdam,
Johannesburg and Zurich, respectively, or
(2) the capital city of the country to which the LIBOR Currency
relates, except that with respect to Dollars, Canadian dollars, Deutsche
marks, Dutch guilders, Portuguese escudos, South African rand and Swiss
francs, the "Principal Financial Center" will be The City of New York
(unless the Issuer selects another location in the United States as its
Place of Payment), Toronto, Frankfurt, Amsterdam, London, Johannesburg and
Zurich, respectively.
"Principal Property" means land, land improvement, building and associated
office and switching equipment constituting an individual operating, warehouse,
service or office facility that is located within the United States of America
or its territories or possessions and owned and operated now or hereafter by the
Partnership or any of its Subsidiaries, the gross book value of which is equal
to more than 1.0% of the Partnership's Consolidated Net Tangible Assets on the
applicable date of determination, other than any such property which the
Partnership's board of representatives (or any managing general partner that
succeeds such board) determines is not of material importance to the Partnership
and its Subsidiaries, taken as a whole.
"Private Exchange Security" means any Security exchanged for a Security
pursuant to a registration rights agreement which security bears the Private
Placement Legend.
"Private Placement Legend" has the meaning specified in Section 204. It is
also referred to as the "Restricted Securities Legend."
"QIB" means any "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act).
"Redemption Date", when used with respect to any Security to be redeemed in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means, unless otherwise specified in such Security, an amount, in the currency
or currency unit in which such Security is denominated or which is otherwise
provided for pursuant hereto, equal to the principal amount thereof (and
premium, if any, thereon) together with accrued interest, if any, to the
Redemption Date.
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"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series, means the date, if any,
specified for that purpose as contemplated by Section 301.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" means a Regulation S Temporary Global
Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Legend" has the meaning specified in Section 204.
"Regulation S Permanent Global Security" means a permanent global
Security deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Security upon expiration
of the Regulation S Restricted Period and delivery of appropriate certification
set forth in Section 201.
"Regulation S Restricted Period" means with respect to any series of
Securities the 40 consecutive days beginning on and including the later of (A)
the day on which any Regulation S Securities of such series are offered to
persons other than distributors (as defined in Regulation S under the Securities
Act) and (B) the date on which any such Securities are originally issued.
"Regulation S Security" has the meaning specified in Section 201.
"Regulation S Temporary Global Security" means a temporary global
Security deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes initially sold in reliance on Rule 903 of
Regulation S.
"Resale Restriction Termination Date" shall have the meaning specified
in Section 306.
"Responsible Officer", when used with respect to the Trustee for any
series of Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the president, any vice president (whether or not designated by a
number or a word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of such Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"restricted period" has the meaning specified in Section 303.
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"Restricted Securities" shall mean Securities of any series that are
offered and sold in a transaction that was not registered under the Securities
Act.
"Restricted Subsidiary" means any Subsidiary that owns any Principal
Property, and any Subsidiary that owns any shares of stock of such Subsidiary.
"Rule 144A Securities" has the meaning specified in Section 201.
"Rule 144A Global Security" has the meaning specified in Section 201.
"Secured Debt" means Debt that is secured by a Lien on any (i)
Principal Property, (ii) shares of stock owned by the Partnership or a
Restricted Subsidiary in a Restricted Subsidiary or (iii) Debt of a Restricted
Subsidiary held by the Partnership or a Restricted Subsidiary (in each case
whether owned on the Issue Date or thereafter acquired or created).
"Securities" means securities evidencing unsecured indebtedness of the
Issuers authenticated and delivered under this Indenture, including any Exchange
Securities or Private Exchange Securities issued in exchange therefor.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Custodian" means the custodian with respect to any Global
Security (as appointed by the Depositary), or any successor Person thereto, and
shall initially be the Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
A "series" of Securities means all Securities denoted as part of the
same series authorized by or pursuant to particular Board Resolutions or Issuer
Orders.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee for such
series pursuant to Section 310.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Stock Exchange" unless specified otherwise with respect to any
particular series of Securities, means the Luxembourg Stock Exchange.
"Subsidiary" means with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by, or, in the case of a
partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such
Person (or a combination thereof).
"Substitute Date" has the meaning specified in Section 516.
12
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article Six
hereof, shall also include its successors and assigns as Trustee hereunder. If
there shall be at one time more than one Trustee hereunder, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with respect to
those series of Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, as in force at the date as of which
this Indenture was executed; provided, however, that in the event the Trust
Indenture Act is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"United States" means, unless otherwise specified with respect to
Securities of any series, the United States of America (including the States and
the District of Columbia), its territories, its possessions (which include, at
the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to
its jurisdiction.
"United States Alien" has the meaning specified in Section 1006.
"United States person" has the meaning specified in Section 1108(b).
"Voting Stock" means, with respect to any Person, capital stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity", when used with respect to any OID Security, means
the yield to maturity, if any, set forth on the face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by either Issuer to the Trustee for any
series of Securities to take any action under any provision of this Indenture,
such Issuer shall furnish to such Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of either Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of an Issuer, stating that the information with
respect to such factual matters is in the possession of such Issuer, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of such
series may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly
14
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee for the appropriate series of
Securities and, where it is hereby expressly required, to the Partnership and
Capital. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee for the appropriate series of Securities and
the Issuers and any agent of such Trustee or the Issuers, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
The Issuers may at their discretion set a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote or
consent to any action by vote or consent authorized or permitted under this
Indenture, but the Issuers shall have no obligation to do so. If not set by the
Issuers prior to the first solicitation of Holders of Registered Securities of a
particular series made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action
or vote shall be 30 days prior to the first solicitation of such vote or
consent. Upon the fixing of such a record date, those persons who were Holders
of Registered Securities at such record date (or their duly designated proxies),
and only those persons, shall be entitled with respect to such Registered
Securities to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Securities deems sufficient.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee for such Securities to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if
15
such certificate or affidavit is deemed by such Trustee to be satisfactory. The
Trustee for such Securities and the Issuers may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to such Trustee by some other Person, (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The principal amount and serial
numbers of Bearer Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which the Issuers and the Trustee
for such Securities deem sufficient.
(f) Subject to Section 115, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver under this
Indenture, the principal amount of an OID Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Securities.
(g) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee for such
Securities, the Security Registrar, any Paying Agent or either Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Issuers.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by either
Issuer shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate
Trust Office, Attention: Corporate Trustee Administration Department, or if
sent by facsimile transmission, to a facsimile number provided by the
Trustee, with a copy mailed, first class postage prepaid to the Trustee
addressed to it as provided above, or
(2) an Issuer by such Trustee or by any Holder shall be sufficient
for every purpose hereunder (except as provided in paragraphs (3), (4) and
(5) of Section 501) if in writing and mailed, first class postage prepaid,
addressed to it at the address of the Partnership's principal office
specified in the first paragraph of this instrument, Attention: General
Counsel or at any other address previously furnished in writing to such
Trustee by such Issuer, or if sent by facsimile transmission, to a
facsimile number provided to the Trustee by such Issuer, with a copy
mailed, first class postage prepaid, to such Issuer addressed to it as
provided above.
16
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders of Registered Securities if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given (unless otherwise herein expressly
provided) to Holders of Bearer Securities who have filed their names and
addresses with the Trustee for such purpose within the previous two years if in
writing and mailed, first class postage prepaid, to each such Holder at his
address as so filed not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, or to all other Holders
of Bearer Securities if published in an Authorized Newspaper on a Business Day
at least twice, the first such publication to be not earlier than the earliest
date, and the second such publication to be not later than the latest date,
prescribed herein for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee for such Securities shall constitute a
sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee for such
Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control. Until such time as this Indenture shall be
17
qualified under the Trust Indenture Act, this Indenture, the Issuers and the
Trustee shall be deemed for all purposes hereof to be subject to and governed by
the Trust Indenture Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by either Issuer shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons
appertaining thereto, expressed or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Security Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of a
Security of any particular series shall not be a Business Day with respect to
Securities of that series, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons) payment of principal of (and premium,
if any) and interest, if any, with respect to such Security need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
18
SECTION 114. Immunity of Partners, Members, Incorporators, Stockholders,
Officers and Directors.
No recourse shall be had for the payment of the principal of (and premium,
if any), or the interest, if any, on any Security or coupon of any series, or
for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any partner, member, incorporator, stockholder, officer
or director, as such, past, present or future, of either of the Issuers or of
any successor or any of their assets, either directly or indirectly through an
Issuer or any successor, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment of penalty or otherwise; it being
expressly agreed and understood that no personal liability whatever shall attach
to, or is incurred by, any partner, member, incorporator, stockholder, officer
or director, past, present or future, of either Issuer or of any successor or
any of their assets, either directly or indirectly through an Issuer or any
successor, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Securities or coupons of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities and coupons of each series.
SECTION 115. Certain Matters Relating to Currencies.
Subject to Section 314, each reference to any currency or currency unit in
any Security, or in a Board Resolution or supplemental indenture relating
thereto, shall mean only the referenced currency or currency unit and no other
currency or currency unit (unless otherwise provided with respect to any
Securities pursuant to Section 301).
The Trustee shall segregate moneys, funds and accounts held by the Trustee
in one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units, notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in a Foreign Currency or currency unit, then for purposes
of determining the principal amount of Securities held by such Holders, the
aggregate principal amount of the Securities denominated in a Foreign Currency
or currency unit shall be deemed to be that amount of Dollars that could be
obtained for such principal amount on the basis of a spot rate of exchange
specified to the Trustee for such series in an Officer's Certificate for such
Foreign Currency or currency unit into Dollars as of the date the taking of such
action or Act by the Holders of the requisite percentage in principal amount of
the Securities is evidenced to such Trustee.
SECTION 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, and
any published notice may also be in an official language of the country of
publication.
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ARTICLE II
Security Forms
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form or
forms (including global form) as shall be established by or pursuant to a Board
Resolution or Issuer Order of each Issuer or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required by this Indenture or any indenture supplemental
hereto or to comply with any law, with any rule or regulation made pursuant
thereto, with any rules of any securities exchange, automated quotation system
or clearing agency or to conform to usage, as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
Unless determined differently as contemplated by the preceding paragraph,
Restricted Securities of a series offered and sold to QIBs in the United States
of America in reliance on Rule 144A ("Rule 144A Securities") shall be issued in
the form of one or more permanent Global Securities, without interest coupons,
bearing appropriate legends as set forth in Section 204 (each, a "Rule 144A
Global Security") which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary. duly executed by the Issuers and authenticated by
the Trustee as hereinafter provided.
Unless determined differently as contemplated by the second preceding
paragraph, Restricted Securities of a series offered and sold outside the United
States of America in reliance on Regulation S (each, a "Regulation S Security")
shall be issued initially in the form of the Regulation S Temporary Global
Security, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. Following the termination
of the Regulation S Restricted Period, beneficial interests in the Regulation S
Temporary Global Security shall be exchanged for beneficial interests in
Regulation S Permanent Global Securities upon the receipt by the Trustee of (i)
a written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent of
any beneficial owners thereof who acquire an interest therein during the
Regulation S Restricted Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Security bearing a Private Placement Legend), and (ii)
an Officer's Certificate from the Issuers. Simultaneously with the
20
authentication of Regulation S Permanent Global Securities, the Trustee shall
cancel the Regulation S Temporary Global Note. Regulation S Global Securities
shall be issued, without interest coupons, bearing appropriate legends as set
forth in Section 204.
Unless determined differently as contemplated by the third preceding
paragraph, Restricted Securities of a series, if any, offered, sold and
initially issued to institutional "accredited investors" (as defined in Rules
501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs ("IAIs")
in the United States of America without registration under the Securities Act
shall be issued as Definitive Securities, without interest coupons, bearing
appropriate legends as set forth in Section 204, (each, a "Definitive IAI
Security"). Upon such issuance, the Trustee shall register such Institutional
Accredited Investor Securities in the name of the beneficial owner or owners of
such Securities (or the nominee of such beneficial owner or owners) and deliver
the certificates for such Institutional Accredited Investor Securities to the
respective beneficial owner or owners.
Unless determined differently as contemplated by the fourth preceding
paragraph, Restricted Securities of a series resold to IAIs who are not QIBs, in
the United States shall be issued in the form of one or more permanent Global
Securities, without interest coupons, bearing appropriate legends as set forth
in Section 204 (each, a "Global IAI Security")
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The Securities and coupons, if any, shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By _______________________
Authorized Officer
SECTION 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented
21
thereby may from time to time be reduced or increased to reflect exchanges and
transfers. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Security. Any instructions by the Issuers with respect to a Security in
global form, after its initial issuance, shall be in writing but need not comply
with Section 102.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
SECTION 204. Legends.
Unless determined differently as provided in Section 201, Global
Securities shall bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(a) Unless determined differently as provided in Section 201,
(A) each Rule 144A Global Security (and each Definitive Security
issued upon the transfer of all or a portion of the beneficial interest in such
Global Security), each Definitive IAI Security and each Global IAI Security (and
each Definitive Security issued upon the transfer of all or a portion of the
beneficial interest in such Global Security) and each Regulation S Temporary
Global Security shall bear the following legend (the "Private Placement Legend")
on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
22
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE PARTNERSHIP OR ANY AFFILIATE OF THE PARTNERSHIP WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE PARTNERSHIP, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000
OF SECURITIES, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (C), (D), (E) AND (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE."; and
(B) the Regulation S Temporary Global Security shall also bear a
legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE
23
INDENTURE (AS DEFINED HEREIN). INTERESTS HEREIN MAY ONLY BE HELD BY
NON-U.S. PERSONS OR U.S. PERSONS THAT PURCHASED SUCH INTEREST IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR DEFINITIVE NOTES."
(C) each Definitive IAI Security and each Global IAI Security (and
each Definitive Security issued upon the transfer of all or a portion of the
beneficial interest in such Global Security) shall also bear the following
additional legend on the face thereof:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIED WITH THE FOREGOING RESTRICTIONS.
Upon the transfer, exchange or replacement of Securities not bearing a
Restricted Securities Legend, the Securities Registrar shall deliver Securities
that do not bear a Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities bearing a Restricted Securities Legend, the Securities
Registrar shall deliver only Securities that bear a Restricted Securities Legend
unless (i) such Securities are exchanged for Exchange Securities, (ii) such
Securities are sold under an effective registration statement, (iii) such
Security is a Regulation S Security transferred, exchanged or replaced after the
termination of the Restricted Period and the conditions of Section 201 are
satisfied or (iv) there is delivered to the Securities Registrar an Opinion of
Counsel to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
ARTICLE III
The Securities
SECTION 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered and Outstanding under this Indenture is unlimited. The Securities
may be issued up to the aggregate principal amount of Securities from time to
time authorized by or pursuant to the applicable Board Resolutions of the
Issuers.
The Securities may be issued in one or more series, each of which shall
be issued pursuant to a Board Resolution or Issuer Order of each Issuer. There
shall be established in one or more Board Resolutions or Issuer Orders of each
Issuer or pursuant to one or more Board Resolutions of each Issuer and, subject
to Section 303, set forth in, or determined in the manner provided in, an
Officer's Certificate of each Issuer, or established in one or more supplemental
indentures hereto, prior to the issuance of Securities of any series all or any
of the following, as applicable (each of which, if so provided, may be
determined from time to time by the Issuers
24
with respect to unissued Securities of that series and set forth in the
Securities of that series when issued from time to time):
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series pursuant to Section 304, 305, 306, 309,
906 or 1107);
(3) whether Securities of that series are to be issuable as
Registered Securities, Bearer Securities or both (and, if Bearer
Securities are to be issued, whether such Bearer Securities shall have
interest coupons attached) and, if other than as provided herein, any
restrictions on the exchange of one form of Securities for another and
on the offer, sale and delivery of the Securities in either form;
(4) the date or dates (or manner of determining the same) on
which the principal of the Securities of that series is payable (which,
if so provided in such Board Resolutions or Issuer Orders, may be
determined by the Issuers from time to time and set forth in the
Securities of the series issued from time to time);
(5) the rate or rates (or the manner of calculation thereof) at
which the Securities of that series shall bear interest (if any), the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Registered Securities on any Interest Payment Date and
the extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 310 with respect to
permanent Global Securities;
(6) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Securities of that series shall be payable, any Registered
Securities of that series may be surrendered for registration of
transfer, any Securities of that series may be surrendered for
exchange, and notices and demands to or upon the Issuers in respect of
the Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining
the same), the price or prices at which (or manner of determining the
same), the currency or currency unit in which, and the terms and
conditions upon which Securities of that series may be redeemed, in
whole or in part, at the option of the Issuers, and any remarketing
arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Issuers to redeem, repay or
purchase Securities of that series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which (or manner of
25
determining the same), the price or prices at which (or manner of
determining the same), the currency or currency unit in which, and the
terms and conditions upon which, Securities of that series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be
issuable is Dollars, the denominations in which any Registered Securities
of that series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which any Bearer
Securities of that series shall be issuable, if other than the denomination
of $5,000;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(11) any Events of Default and covenants of the Issuers with respect
to the Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(12) if a Person other than First Union National Bank is to act as
trustee for the Securities of that series, the name and location of the
Corporate Trust Office of such trustee;
(13) if other than Dollars, the currency or currency unit in which
payment of the principal of (and premium, if any) or interest, if any, on
the Securities of that series shall be made or in which the Securities of
that series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of the provisions of
Section 314;
(14) if the principal of (and premium, if any) and interest, if any,
on the Securities of that series are to be payable, at the election of the
Issuers or a Holder thereof, in a currency or currency unit other than that
in which such Securities are denominated or stated to be payable, in
accordance with provisions in addition to or in lieu of, or in accordance
with the provisions of, Section 314, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency or currency unit in which such
Securities are denominated or stated to be payable and the currency or
currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if
any;
(16) if the Securities of such series are issuable as Indexed
Securities, the manner in which the amount of payments of principal,
premium, if any, and interest, if any, on that series shall be determined;
(17) if the Securities of that series do not bear interest, the
applicable dates for purposes of Section 701;
26
(18) if other than as set forth in Article Four, provisions for the
satisfaction and discharge of this Indenture with respect to the Securities
of that series;
(19) the date as of which any Bearer Securities of that series and any
Global Security representing Outstanding Securities of that series shall be
dated if other than the date of original issuance of the first Security of
that series to be issued;
(20) the application, if any, of Sections 1006 and 1108 to the
Securities of that series;
(21) if other than as provided in Article II and this Article III,
whether the Securities of the series shall be issued in whole or in part in
the form of a Global Security or Securities and, in such case, the
Depositary and Global Exchange Agent, if any, for such Global Security or
Securities, whether such global form shall be permanent or temporary and,
if applicable, the Exchange Date;
(22) if other than as provided in Article II and this Article III, if
Securities of the series are to be issuable initially in the form of a
temporary Global Security, the circumstances under which the temporary
Global Security can be exchanged for Definitive Securities and whether the
Definitive Securities will be Registered Securities and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Exchange Date shall be paid to any clearing
organization with respect to a portion of such Global Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date if other than as provided in
this Article III;
(23) the extent and manner, if any, to which payment on or in respect
of Securities of that series will be subordinated to the prior payment of
other liabilities and obligations of the Issuers;
(24) whether the Issuers shall enter into an exchange and registration
rights agreement with respect to the Securities of the series;
(25) the forms of the Securities of that series; and
(26) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
Except as provided in or pursuant to Section 204, all Securities of any
particular series and the coupons appertaining to any Bearer Securities of such
series shall be substantially identical except as to denomination, rate of
interest, Stated Maturity and the date from which interest, if any, shall
accrue, and except as may otherwise be provided in or pursuant to such Board
Resolutions and set forth in such Officer's Certificates relating thereto or
provided in or pursuant to any supplemental indenture hereto. The terms of such
Securities, as set forth above, may be determined by the Issuers from time to
time if so provided in or established pursuant to the authority granted in Board
Resolutions or Issuer Order of each Issuer. All Securities of any
27
one series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Securities of such series.
Prior to the delivery of a Security of any series in any such form to
the Trustee for the Securities of such series for authentication, the Issuers
shall deliver to such Trustee the following:
(1) The Board Resolutions or Issuer Order of each Issuer by
or pursuant to which such form of Security has been approved and, if
applicable, the supplemental indenture by or pursuant to which such
form of Security has been approved;
(2) An Officer's Certificate of each Issuer dated the date
such Certificate is delivered to such Trustee stating that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of Securities in such forms have been
complied with; and
(3) An Opinion of Counsel stating that Securities in such
forms, together with any coupons appertaining thereto, when (a)
completed by appropriate insertions and executed and delivered by the
Issuers to such Trustee for authentication in accordance with this
Indenture, (b) authenticated and delivered by such Trustee in
accordance with this Indenture within the authorization as to
aggregate principal amount established from time to time by the Board
of each Issuer and (c) sold in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the
Issuers, subject to the effects of applicable bankruptcy,
reorganization, fraudulent conveyance, moratorium, insolvency and
other similar laws generally affecting creditors' rights, to general
equitable principles, to an implied covenant of good faith and fair
dealing and to other customary qualifications.
SECTION 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as
contemplated by Section 301, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof, and any
Bearer Securities of a series shall be issuable in the denomination of $5,000,
or the equivalent amounts thereof in the case of Registered Securities and
Bearer Securities denominated in a Foreign Currency or currency unit.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of
each Issuer by its Chief Executive Officer, its President, its Chief Financial
Officer or one of its Vice Presidents. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of an Issuer shall bind
such Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
28
At any time and from time to time after the execution and delivery of this
Indenture, the Issuers may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Issuers, to the Trustee for the
Securities of such series for authentication, together with an Issuer Order of
each Issuer for the authentication and delivery of such Securities, and such
Trustee, in accordance with the Issuer Orders, shall authenticate and deliver
such Securities; provided, however, that, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security may
be delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Trustee for the Securities of such series a certificate substantially in
the form set forth in Exhibit B to this Indenture. If any Security shall be
represented by a permanent Global Security, then, for purposes of this Section
and Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
Global Security shall be deemed to be delivery in connection with the original
issuance of such beneficial owner's interest in such permanent Global Security.
Except as permitted by Section 309 or 310, the Trustee for the Securities of a
series shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured other than matured coupons in
default have been detached and cancelled. If all the Securities of any one
series are not to be issued at one time and if the Board Resolutions or Issuer
Orders relating to such Securities shall so permit, such Issuer Orders may set
forth procedures acceptable to the Trustee for the issuance of such Securities,
including, without limitation, procedures with respect to interest rate, Stated
Maturity, date of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to
deliver Board Resolutions, Officer's Certificates and an Opinion of Counsel
otherwise required pursuant to Sections 102 and 301 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Registered Security shall be dated the date of its authentication,
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security shall be dated as of the date of original issuance of the first
Security of such series to be issued.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein manually executed by the Trustee for such Security or
on its behalf pursuant to Section 614, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered, by
the Trustee or the Authenticating Agent for such series then in office, any
successor by merger, conversion or consolidation to such Trustee, or any
successor Authenticating Agent, as the case may be, may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if
29
such successor Trustee or successor Authenticating Agent had itself
authenticated such Securities.
Unless otherwise provided with respect to Securities of any series pursuant
to Section 301, each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
SECTION 304. Temporary Securities and Exchange of Securities.
(a) Pending the preparation of permanent Securities of any
particular series, the Issuers may execute, and upon receipt of an Issuer Order
of each Issuer, the Trustee for the Securities of such series shall authenticate
and deliver, in the manner specified in Section 303, temporary Securities which
are printed, lithographed, typewritten, photocopied or otherwise produced, in
any denomination, with like terms and conditions as the permanent Securities of
like series in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. Any such temporary Securities may be in global
form, representing such of the Outstanding Securities of such series as shall be
specified therein.
Except in the case of temporary Bearer Securities in global form (which
shall be exchanged only in accordance with the provisions of Section 304(b)) and
Temporary Regulation S Global Securities, which shall be exchanged only in
accordance with Section 201, if temporary Securities of any particular series
are issued, the Issuers will cause permanent Securities of that series to be
prepared without unreasonable delay. After the preparation of such permanent
Securities, the temporary Securities of such series shall be exchangeable for
such permanent Securities and of a like Stated Maturity and with like terms and
provisions upon surrender of the temporary Securities of such series, together
with all unmatured and matured coupons in default, if any, at the office or
agency of the Issuers in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any particular series, the Issuers shall execute and (in
accordance with Issuer Orders of each Issuer delivered at or prior to the
authentication of the first permanent Security of such series) the Trustee for
the Securities of such series or the Global Exchange Agent shall authenticate
and deliver in exchange therefor a like principal amount of permanent Securities
of authorized denominations of the same series and of a like Stated Maturity;
provided, however, unless otherwise specified pursuant to Section 301, no
permanent Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a permanent Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 304(b). Until exchanged as
hereinabove provided, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as permanent
Securities of the same series and with like terms and conditions, except (with
respect to Bearer Securities) as to payment of interest, if any, authenticated
and delivered hereunder.
Any temporary Global Security and any permanent Global Security shall,
unless otherwise provided therein, be delivered to a Depositary designated
pursuant to Section 301.
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(b) Without unnecessary delay but in any event not later than the
date specified in or determined pursuant to the terms of any such temporary
Global Security (the "Exchange Date"), the Securities represented by any
temporary Global Security of a series of Securities issuable in bearer form may
be exchanged for Definitive Securities (subject to the second succeeding
paragraph) or Securities to be represented thereafter by one or more permanent
Global Securities, without interest coupons. On or after the Exchange Date such
temporary Global Security shall be surrendered by the Depositary to the Trustee
for such Security, as the Issuers' agent for such purpose, or the agent
appointed by the Issuers pursuant to Section 301 to effect the exchange of the
temporary Global Security for Definitive Securities (the "Global Exchange
Agent"), and following such surrender, such Trustee or the Global Exchange Agent
(as authorized by the Trustee as an Authenticating Agent pursuant to Section
614) shall (1) endorse the temporary Global Security to reflect the reduction of
its principal amount by an equal aggregate principal amount of such Security,
(2) endorse the applicable permanent Global Security, if any, to reflect the
initial amount, or an increase in the amount of Securities represented thereby,
(3) manually authenticate such Definitive Securities or such permanent Global
Security, as the case may be, (4) subject to Section 303, deliver such
Definitive Securities to the Holder thereof or, as the case may be, deliver such
permanent Global Security to the Depositary to be held outside the United States
for the accounts of Euroclear and Clearstream, for credit to the respective
accounts at Euroclear and Clearstream, designated by or on behalf of the
beneficial owners of such Securities (or to such other accounts as they may
direct) and (5) redeliver such temporary Global Security to the Depositary,
unless such temporary Global Security shall have been cancelled in accordance
with Section 312 hereof; provided, however, that, unless otherwise specified in
such temporary Global Security, upon such presentation by the Depositary, such
temporary Global Security shall be accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of
such temporary Global Security held for its account then to be exchanged for
Definitive Securities or one or more permanent Global Securities, as the case
may be, and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream, as to the portion of such temporary Global Security held
for its account then to be exchanged for Definitive Securities or one or more
permanent Global Securities, as the case may be, each substantially in the form
set forth in Exhibit C to this Indenture. Each certificate substantially in the
form of Exhibit C hereto of Euroclear or Clearstream, as the case may be, shall
be based on certificates of the account Holders listed in the records of
Euroclear or Clearstream, as the case may be, as being entitled to all or any
portion of the applicable temporary Global Security. An account holder of
Euroclear or Clearstream, as the case may be, desiring to effect the exchange of
interest in a temporary Global Security for an interest in Definitive Securities
or one or more permanent Global Securities shall instruct Euroclear or
Clearstream, as the case may be, to request such exchange on its behalf and
shall deliver to Euroclear or Clearstream, as the case may be, a certificate
substantially in the form of Exhibit B hereto and dated no earlier than 15 days
prior to the Exchange Date. Until so exchanged, temporary Global Securities
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Securities and permanent Global Securities of the same series
authenticated and delivered hereunder, except as provided in the fourth
succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or
the Global Exchange Agent by Euroclear or Clearstream of any certificate
substantially in the form of Exhibit C hereto may be relied upon by the Issuers
and such Trustee or the Global Exchange Agent as conclusive evidence that a
corresponding certificate or certificates has or have been
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delivered to Euroclear or to Clearstream, as the case may be, pursuant to the
terms of this Indenture.
On or prior to the Exchange Date, the Issuers shall deliver to the Trustee
for the Securities of the appropriate series or the Global Exchange Agent
Definitive Securities in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Issuers. At any time
on or after the Exchange Date, upon 30 days' notice to the Trustee for the
Securities of the appropriate series or the Global Exchange Agent by Euroclear
or Clearstream, as the case may be, acting at the request of or on behalf of the
beneficial owner, a Bearer Security represented by a temporary Global Security
or a permanent Global Security, as the case may be, may be exchanged, in whole
or from time to time in part, for Definitive Securities without charge and such
Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange
for each portion of such temporary Global Security or such permanent Global
Security, an equal aggregate principal amount of Definitive Securities of the
same series of authorized denominations and with like terms and provisions as
the portion of such temporary Global Security or such permanent Global Security
to be exchanged, which, unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that definitive Bearer Securities shall be delivered
in exchange for a portion of the temporary Global Security or the permanent
Global Security only in compliance with the requirements of the second preceding
paragraph. On or prior to the thirtieth day following receipt by the Trustee for
the Securities of the appropriate series or the Global Exchange Agent of such
notice with respect to a Security, or, if such day is not a Business Day, the
next succeeding Business Day, the temporary Global Security or the permanent
Global Security, as the case may be, shall be surrendered by the Depositary to
such Trustee, as the Issuers' agent for such purpose, or the Global Exchange
Agent to be exchanged in whole, or from time to time in part, for Definitive
Securities without charge following such surrender, upon the request of
Euroclear or Clearstream, as the case may be, and such Trustee or the Global
Exchange Agent shall (1) endorse the applicable temporary Global Security or the
permanent Global Security to reflect the reduction of its principal amount by
the aggregate principal amount of such Security, (2) in accordance with
procedures acceptable to the Trustee cause the terms of such Security and
coupons, if any, to be entered on a Definitive Security, (3) manually
authenticate such Definitive Security and (4) if a Bearer Security is to be
delivered, deliver such Definitive Security outside the United States to
Euroclear or Clearstream, as the case may be, for or on behalf of the beneficial
owner thereof, in exchange for a portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or permanent
Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security or permanent Global
Security, except that a Person receiving Definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such Definitive Securities in person at the
offices of Euroclear or Clearstream. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary Global Security or a
permanent Global Security shall be delivered only outside the United States.
32
Until exchanged in full as hereinabove provided, any such temporary Global
Security or permanent Global Security shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities of the same series
and with like terms and conditions, except as to payment of interest, if any,
authenticated and delivered hereunder. Unless otherwise specified as
contemplated by Section 301, interest payable on such temporary Global Security
on an Interest Payment Date for Securities of such series shall be payable to
Euroclear and Clearstream on such Interest Payment Date upon delivery by
Euroclear and Clearstream to the Trustee for the Securities of the appropriate
series or the Global Exchange Agent in the case of payment of interest on a
temporary Global Security with respect to an Interest Payment Date occurring
prior to the applicable Exchange Date of a certificate or certificates
substantially in the form set forth in Exhibit D to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such Global
Security on such Interest Payment Date and who have, in the case of payment of
interest on a temporary Global Security with respect to an Interest Payment Date
occurring prior to the applicable Exchange Date, each delivered to Euroclear or
Clearstream, as the case may be, a certificate substantially in the form set
forth in Exhibit E to this Indenture.
Any Bearer Security issued as a Definitive Security authenticated and
delivered by the Trustee for the Securities of the appropriate series or the
Global Exchange Agent in exchange for a portion of a temporary Global Security
or a permanent Global Security shall not bear a coupon for any interest which
shall theretofore have been duly paid by such Trustee to Euroclear or
Clearstream or by the Issuers to such Trustee in accordance with the provisions
of this Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Issuers may,
in their discretion and if required or desirable under applicable law,
substitute one or more other forms of such exhibits for such exhibits, eliminate
the requirement that any or all certificates be provided, or change the time
that any certificate may be required, provided that such substitute form or
forms or notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with an Issuer Request of each Issuer
and such form or forms, elimination or change is reasonably acceptable to the
Trustee.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Issuers shall cause to be kept at the Corporate Trust Office of the
Trustee for the Securities of each series a register (the register maintained in
such office being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as they may prescribe (including,
without limitation, such regulations as may be necessary or appropriate to
confirm compliance with applicable laws and regulations), the Issuers shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Trustee for the Securities of each series is hereby
initially appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities of such series as
herein provided.
Upon surrender for registration of transfer of any Registered Security of
any particular series at the office or agency of the Issuers in a Place of
Payment for that series, the Issuers shall execute, and the Trustee for the
Securities of that series shall authenticate and deliver, in the
33
name of the designated transferee or transferees, one or more new Registered
Securities of any authorized denominations, and of a like Stated Maturity and of
a like series and aggregate principal amount.
Notwithstanding anything to the contrary, Restricted Securities and
beneficial interests therein shall only be transferred in a transaction
registered under the Securities Act or pursuant to an applicable exemption
therefrom and only in accordance with Section 306.
In connection with the transfer or exchange of a Definitive IAI Security
for a beneficial interest in a Global Security, upon receipt by the Trustee of
such Definitive IAI Security, duly endorsed or accompanied by appropriate
instruments of transfer in accordance with Section 306(a), the Trustee shall
cancel such Definitive IAI Security and cause, or direct the Securities
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the aggregate
principal amount of Securities represented by the applicable Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Issuers shall issue and the Trustee shall authenticate, upon written order of
the Issuers in the form of an Officer's Certificate of each Issuer, a new Global
Security in the appropriate principal amount. The Trustee shall deliver copies
of each certification and instruction received by it to the Depositary and, upon
receipt thereof, the Securities Custodian shall reflect on its books and records
the date and an increase in the principal amount of such Global Security in an
amount equal to the principal amount of the Definitive IAI Security so
transferred or exchanged.
In connection with the exchange of a portion of a Definitive IAI Security
for a beneficial interest in a Global Security, the Trustee shall cancel such
Definitive IAI Security, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, to the transferring Holder a new Definitive IAI
Security representing the principal amount not so transferred.
The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depositary therefore. A transferor of a
beneficial interest in a Global Security shall deliver a written order given in
accordance with the Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial interest
in such Global Security or another Global Security and such account shall be
credited in accordance with such order with a beneficial interest in the
applicable Global Security and the account of the Person making the transfer
shall be debited by an amount equal to the beneficial interest in the Global
Security being transferred.
Except as otherwise provided herein, at the option of the Holder,
Registered Securities of any particular series may be exchanged for other
Registered Securities of any authorized denominations, and of a like Stated
Maturity and of a like series and aggregate principal amount and with like terms
and conditions, upon surrender of the Registered Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Issuers shall execute, and the Trustee for such Securities shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. Except as otherwise specified pursuant to Section 301,
Registered Securities may not be exchanged for Bearer Securities.
34
Notwithstanding any other provision of this Section or Section 304, unless
and until it is exchanged in whole or in part for Registered Securities issued
in the form of Definitive Securities, a Global Security representing all or a
portion of the Registered 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.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and with like terms and
provisions, upon surrender of the Bearer Securities to be exchanged at any
office or agency of the Issuers in a Place of Payment for that series, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Issuers (or to the Trustee for the Security in case of matured coupons in
default) in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Issuers and such Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency of the Issuers in a Place of
Payment for that series located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
with like terms and conditions after the close of business at such office or
agency on or after (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Issuers shall
execute, and the Trustee for such Securities shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form
notifies the Issuers 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 303, the
Issuers shall appoint a successor Depositary with respect to the Securities for
35
such series. If (i) a successor Depositary for the Securities of such series is
not appointed by the Issuers within 90 days after the Issuers receive such
notice or become aware of such ineligibility or (ii) the Issuers deliver to the
Trustee for Securities of such series in registered form Issuer Orders of each
Issuer stating that the Securities of such series shall be exchangeable, the
Issuers' election pursuant to Section 301 shall no longer be effective with
respect to the Securities for such series and the Issuers will execute, and the
Trustee, upon receipt of Issuer Orders of each Issuer for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities (or portion
thereof being exchanged) representing such series in exchange for such Global
Security or Securities.
The Issuers may at any time and in their sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Issuers will execute, and the Trustee, upon receipt of an
Issuer Order of each Issuer for the authentication and delivery of definitive
Registered Securities of such series, will authenticate and deliver, Registered
Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Issuers pursuant to Section 301 with respect to a
series of Securities in registered form, 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 Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Issuers and
such Depositary. Thereupon the Issuers shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary a new Security or Securities of the same series, and 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 (ii) to such Depositary a new Global Security of like tenor
and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
Notwithstanding anything to the contrary, in no event shall a
Regulation S Temporary Global Security be exchanged for Securities in definitive
form prior to (i) the expiration of the Regulation S Restricted Period and (ii)
the receipt by the Trustee of the certification required pursuant to Section
201.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
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 in writing. The
Trustee shall deliver such Registered Security to the persons in whose names
such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuers, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
36
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuers or the Trustee for such Security)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuers and the Security Registrar for such series duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuers may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Issuers shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1104 and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption as a whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided,
however, that such Registered Security shall be simultaneously surrendered for
redemption.
Furthermore, notwithstanding any other provision of this Section 305,
the Issuers will not be required to exchange any Securities if, as a result of
the exchange, the Issuers would or would be reasonably likely to suffer adverse
consequences under any United States law or regulation.
SECTION 306. Additional Provisions Applicable to Transfer and Exchange of
Restricted Securities.
(a) Notwithstanding anything to the contrary, the following
provisions shall apply with respect to any proposed transfer of Rule 144A
Securities or Institutional Accredited Investor Securities prior to the date
which is two years after the later of the date of its original issue and the
last date on which an Issuer or any Affiliate of an Issuer was the owner of such
Securities (or any predecessor thereto) (the "Resale Restriction Termination
Date") other than transfers pursuant to an effective registration statement or a
transfer in exchange for Exchange Securities as part of a registered exchange
offer:
(A) a transfer of a Rule 144A Security or an IAI Security or a
beneficial interest therein to a QIB shall be made upon the representation
of the transferee that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment discretion
and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuers as such transferee has requested pursuant
to Rule 144A or has determined not to request such information and that it
is aware that the transferor is
37
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(B) a transfer of a Rule 144A Security or an IAI Security or a
beneficial interest therein to an IAI shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Section 307 from the proposed transferee and, if requested by
the Issuers or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them;
and
(C) a transfer of a Rule 144A Security or an IAI Security or a
beneficial interest therein to a Non-U.S. Person shall be made upon
receipt by the Trustee or its agent of a certificate substantially in
the form set forth in Section 308 from the proposed transferor and, if
requested by the Issuers or the Trustee, the delivery of an opinion of
counsel, certification and/or other information satisfactory to each of
them.
(b) Notwithstanding anything to the contrary, the following
provisions shall apply with respect to any proposed transfer of a Regulation S
Security prior to the expiration of the Regulation S Restricted Period and the
issuance of a Regulation S Permanent Global Note other than transfers pursuant
to an effective registration statement or a transfer in exchange for Exchange
Securities as part of a registered exchange offer:
(A) a transfer of a Regulation S Security or a beneficial
interest therein to a QIB shall be made upon the representation of the
transferee, that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Issuers as such
transferee has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(B) a transfer of a Regulation S Security or a beneficial
interest therein to an IAI shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in
Section 307 from the proposed transferee and, if requested by the
Issuers or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them;
and
(C) a transfer of a Regulation S Security or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Section 308 hereof from the proposed transferor and, if
requested by the Issuers or the Trustee, receipt by the Trustee or its
agent of an opinion of counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Regulation S Restricted Period, interests
in a Regulation S Security may be transferred without requiring certification
set forth in Section 307, Section 308 or any additional certification; provided
that certification shall be required in the case of a
38
transferee who takes delivery in the form of an interest in the Rule 144A Global
Security and, at any time, in the case of a transfer to an IAI, a certificate in
the form set forth by Section 307 may be required by the Issuers.
(c) The Issuers shall deliver to the Trustee an Officer's
Certificate of each Issuer setting forth the Resale Restriction Termination Date
and the Regulation S Restricted Period.
The Securities Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 204 or this
Section 306. The Issuers shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Securities Registrar.
SECTION 307. Form of Certificate to be Delivered in Connection with Transfers
to Institutional Accredited Investors.
[Date]
[Trustee]
[Address]
Attention: Corporate Trust Services Division
Dear Sirs:
This certificate is delivered to request a transfer of $________
principal amount of the [Title of Securities] (the "Securities") of Cellco
Partnership (the "Partnership") and Verizon Wireless Capital LLC ("Capital" and
together with the Partnership, the "Issuers").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Securities
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
39
2. We understand that the Securities have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which an Issuer or
any affiliate of an Issuer was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the
Partnership, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such
an institutional "accredited investor," in each case in a minimum principal
amount of Securities of $250,000 or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at all
times within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of
the Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Issuers and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and that it is acquiring such Securities
for investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Issuers and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale Termination
Date of the Securities pursuant to clauses (c), (d), (e) or (f) above to require
the delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Issuers and the Trustee.
TRANSFEREE:__________________________
BY___________________________________
Signature Medallion Guaranteed
SECTION 308. Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S.
[Date]
[Trustee]
[Address]
Attention: Corporate Trust Services Division
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Re: Cellco Partnership and Verizon Wireless Capital LLC
[Title of Securities] (the "Securities")
___________________________________________________
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States or (ii)
the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature Signature Medallion Guaranteed
SECTION 309. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee for such Security or the
Issuers and the Trustee for a Security receive evidence to their satisfaction of
the destruction, loss or theft of any Security or coupon and (ii)
41
there is delivered to the Issuers and such Trustee such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Issuers or such
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Issuers shall execute and upon its request such Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for such mutilated Security, or in exchange for the Security to which a
mutilated, destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not mutilated, destroyed, lost or stolen) a new Security of the same
series and in a like principal amount and of a like Stated Maturity and with
like terms and conditions and bearing a number not contemporaneously outstanding
with coupons corresponding to the coupons, if any, appertaining to such
mutilated, destroyed, lost or stolen Security or to the Security to which such
mutilated, destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Issuers in their
discretion may, instead of issuing a new Security, pay such Security or coupon
(without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Issuers and the Trustee
for such Security such security or indemnity as may be required by them to save
each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Issuers and such Trustee and any agent of any of them of the
destruction, loss or theft of such Security and the ownership thereof; provided,
however, that the principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuers
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee for such Security)
connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for any mutilated Security, or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall constitute an
original additional contractual obligation of the Issuers, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and each such
new Security shall be at any time enforceable by anyone, and each such new
Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
42
SECTION 310. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided in
such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series,
payment of interest may be made at the Corporate Trust Office or, at the option
of the Issuers (i) in the case of Registered Securities, may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register, or (ii) in the case of Bearer Securities, upon
presentation and surrender of the appropriate coupon appertaining thereto or by
transfer to an account maintained by the payee with a bank located outside the
United States. Notwithstanding the foregoing, a Holder of $1,000,000 or more in
aggregate principal amount of Securities of any series in definitive form,
whether having identical or different terms and provisions, having the same
Interest Payment Dates will, at the option of the Issuers, be entitled to
receive interest payments, other than at Maturity, by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee for the Securities of such series at least 15
days prior to the applicable Interest Payment Date. Any wire instructions
received by the Trustee for the Securities of such series shall remain in effect
until revoked by the Holder.
Unless otherwise provided or contemplated by Section 301, interest, if
any, payable on any Interest Payment Date with respect to a permanent Global
Security will be paid to or at the direction of the Depository.
Any interest on any Registered Security of any particular series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Issuers at their election in each case, as provided in clause (1) or (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of that series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Issuers shall notify the Trustee for the Registered Securities of such
series in writing of the amount of Defaulted Interest proposed to be
paid on each Registered Security of that series and the date of the
proposed payment, and at the same time the Issuers shall deposit with
such Trustee an amount of money in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except as provided in Sections 314(b) and 314(d)), equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to such 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 such
Trustee shall fix a Special Record Date for the payment of
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such Defaulted Interest which shall not be more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by such Trustee of the notice of
the proposed payment. Such Trustee shall promptly notify the Issuers of
such Special Record Date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of that series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. Such Trustee may, in its
discretion, in the name and at the expense of the Issuers, cause a
similar notice to be published at least once in a newspaper published
in the English language, customarily on each Business Day and of
general circulation in New York, New York, but such publication shall
not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of that series (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Issuers may make payment of any Defaulted Interest on
Registered Securities of any particular series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice is
given by the Issuers to the Trustee for the Securities of such series
of the proposed manner of payment pursuant to this clause, such manner
of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 311. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Issuers, the Trustee for such Security and any agent of the
Issuers or such Trustee may treat the Person in whose name any such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 310) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither of the Issuers, such Trustee nor any agent of
either of the Issuers or such Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuers, the Trustee for such Security and any agent of
the Issuers or such Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
44
neither of the Issuers, such Trustee nor any agent of either of the Issuers or
such Trustee shall be affected by notice to the contrary.
None of the Issuers, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 312. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange, or delivered in satisfaction of any
sinking fund payment, shall, if surrendered to any Person other than the Trustee
for such Securities, be delivered to such Trustee and, in the case of Registered
Securities and matured coupons, shall be promptly cancelled by it. All Bearer
Securities and unmatured coupons so delivered to the Trustee for such Securities
shall be cancelled by such Trustee. An Issuer may at any time deliver to the
Trustee for Securities of a series for cancellation any Securities previously
authenticated and delivered hereunder which such Issuer may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by such Trustee. Notwithstanding any other provision of this Indenture to the
contrary, in the case of a series, all the Securities of which are not to be
originally issued at one time, a Security of such series shall not be deemed to
have been Outstanding at any time hereunder if and to the extent that,
subsequent to the authentication and delivery thereof, such Security is
delivered to the Trustee for such Security for cancellation by an Issuer or any
agent thereof upon the failure of the original purchaser thereof to make payment
therefor against delivery thereof, and any Security so delivered to such Trustee
shall be promptly cancelled by it. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities and
coupons held by the Trustee for such Securities shall be disposed of by such
Trustee in accordance with its standard procedures and a certificate of
disposition evidencing such disposition of Securities and coupons shall be
provided to the Issuers by such Trustee. In the case of any temporary Global
Security, which shall be disposed of if the entire aggregate principal amount of
the Securities represented thereby has been exchanged, the certificate of
disposition shall state that all certificates required pursuant to Section 304
hereof, substantially in the form of Exhibit C hereto (or in the form of any
substitute exhibit as provided in the last paragraph of Section 304), to be
given by Euroclear or Clearstream, have been duly presented to the Trustee for
such Securities by Euroclear or Clearstream, as the case may be. Permanent
Global Securities shall not be disposed of until exchanged in full for
definitive Securities or until payment thereon is made in full.
SECTION 313. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months;
provided that interest on any LIBOR Securities shall be computed on the basis of
a 360-day year and the actual number of days elapsed, except as specified
pursuant to Section 301.
45
SECTION 314. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect to
any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal
of, premium, if any, and interest on Securities of any series denominated in a
Foreign Currency or currency unit will be payable by the Issuers in Dollars
based on the equivalent of that Foreign Currency or currency unit converted into
Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series denominated in a Foreign Currency or
currency unit that Holders shall have the option, subject to paragraph (d)
below, to receive payments of principal of, premium, if any, and interest on
such Registered Securities in such Foreign Currency or currency unit by
delivering to the Trustee (or to any duly appointed Paying Agent) for the
Registered Securities of that series a written election, to be in form and
substance satisfactory to such Trustee (or to any such Paying Agent), not later
than the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in such
Foreign Currency or currency unit, such election will remain in effect for such
Holder until changed by such Holder by written notice to the Trustee (or to any
such Paying Agent) for the Registered Securities of that series; provided,
however, that any such change must be made not later than the close of business
on the Election Date immediately preceding the next payment date to be effective
for the payment to be made on such payment date; and provided, further, that no
such change or election may be made with respect to payments to be made on any
Registered Security of such series with respect to which an Event of Default has
occurred, the Issuers have exercised any defeasance, satisfaction or discharge
options pursuant to Article Four or notice of redemption has been given pursuant
to Article Eleven. If any Holder makes any such election, such election will not
be effective as to any transferee of such Holder and such transferee shall be
paid in Dollars unless such transferee makes an election as specified above;
provided, however, that such election, if in effect while funds are on deposit
with respect to the Registered Securities of such series as described in Section
404 or Section 405, will be effective on any transferee of such Holder unless
otherwise specified pursuant to Section 301 for such Registered Securities. Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee (or to any duly appointed Paying Agent) for the
Registered Securities of such series not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in Dollars.
(c) With respect to any Registered Securities of any series
denominated in a Foreign Currency or currency unit and payable in Dollars, the
amount of Dollars so payable will be determined by the Currency Determination
Agent based on the highest indicative quotation in The City of New York selected
by the Currency Determination Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date. Such
selection shall be made from among the quotations appearing on the bank
composite or multi-contributor pages of the Reuters Monitor Foreign Exchange
Service or, if not available, the Telerate Monitor Foreign Exchange Service, for
three (or two if three are not available) major banks in New York City. The
first three (or two) such banks selected by the Currency Determination Agent
which are offering quotes on the Reuters Foreign Exchange Service, as the
46
case may be, shall be used. If such quotations are unavailable from either such
foreign exchange service, such selection shall be made from the quotations
received by the Currency Determination Agent from no more than three nor less
than two recognized foreign exchange dealers in The City of New York selected by
the Currency Determination Agent and approved by the Issuers (one of which may
be the Currency Determination Agent) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of the Foreign Currency
or currency unit payable on such payment date in respect of all Registered
Securities denominated in such Foreign Currency or currency unit and for which
the applicable dealer commits to execute a contract. If fewer than two such bid
quotations are available at 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date, such payment will be based
on the Market Exchange Rate as of the second Business Day preceding the
applicable payment date. If the Market Exchange Rate for such date is not then
available, payments shall be made in the Foreign Currency or currency unit. All
currency exchange costs associated with any payment in Dollars on any such
Registered Securities will be borne by the Holder thereof by deductions from
such payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency
or currency unit in which Registered Securities of any series are payable, then
with respect to each date for the payment of principal of, premium, if any, and
interest on the Registered Securities of that series occurring after the last
date on which such Foreign Currency or currency unit was used, the Issuers may
make such payment in Dollars. The Dollar amount to be paid by the Issuers to the
Trustee for the Registered Securities of such series and by such Trustee or any
Paying Agent for the Registered Securities of such series to the Holders of such
Registered Securities with respect to such payment date shall be determined by
the Currency Determination Agent on the basis of the Market Exchange Rate as of
the second Business Day preceding the applicable payment date or, if such Market
Exchange Rate is not then available, on the basis of the most recently available
Market Exchange Rate, or as otherwise established pursuant to Section 301 with
respect to such Securities. Any payment in respect of such Registered Security
made under such circumstances in Dollars will not constitute an Event of Default
hereunder.
(e) For purposes of this Indenture the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which is a component
currency of any currency unit.
"Election Date" shall mean, for the Registered Securities of any
series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 314, the
following shall apply: (i) if the official unit of any Component Currency is
altered by way of combination or subdivision, the number of units of that
currency as a component shall be divided or multiplied in the same proportion,
(ii) if two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as components shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such a single currency, (iii) if
any Component Currency is divided into two or more currencies, the amount of
that original Component Currency as a component shall
47
be replaced by the amounts of such two or more currencies having an aggregate
value on the date of division equal to the amount of the former Component
Currency immediately before such division and (iv) in the event of an official
redenomination of any currency (including, without limitation, a currency unit),
the obligations of the Issuers to make payments in or with reference to such
currency on the Registered Securities of any series shall, in all cases, be
deemed immediately following such redenomination to be obligations to make
payments in or with reference to that amount of redenominated currency
representing the amount of such currency immediately before such redenomination.
(g) All determinations referred to in this Section 314 made by the
Currency Determination Agent shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Holders of the applicable Securities. The Currency
Determination Agent shall promptly give written notice to the Trustee for the
Securities of such series of any such decision or determination. The Currency
Determination Agent shall promptly give written notice to the Trustee of any
such decision or determination. The Currency Determination Agent shall have no
liability for any determinations referred to in this Section 314 made by it.
(h) The Trustee for the Securities of a particular series shall be
fully justified and protected in relying and acting upon information received by
it from an Issuer and the Currency Determination Agent with respect to any of
the matters addressed in or contemplated by this Section 314 and shall not
otherwise have any duty or obligation to determine such information
independently.
SECTION 315. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are
denominated in a currency unit or a currency other than Dollars or (ii) may be
payable in a currency unit or a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Issuers shall
maintain with respect to each such series of Securities, or as so required, a
Currency Determination Agent. The Issuers shall cause the Currency Determination
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and for the purpose of converting the issued
currency or currency unit into the applicable payment currency or currency unit
for the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 314.
(b) No resignation of the Currency Determination Agent and no
appointment of a successor Currency Determination Agent pursuant to this Section
shall become effective until the acceptance of appointment by the successor
Currency Determination Agent as evidenced by a written instrument delivered to
the Issuers and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Currency Determination Agent for any cause, with respect to the Securities of
one or more series, the Issuers, by a Board
48
Resolution of each Issuer, shall promptly appoint a successor Currency
Determination Agent or Currency Determination Agents with respect to the
Securities of that or those series (it being understood that any such successor
Currency Determination Agent may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall only be one
Currency Determination Agent with respect to the Securities of any particular
series).
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective Boards evidenced by an
Issuer Resolution of each Issuer, at any time, with respect to the Securities of
any series, elect to have either Section 402 or 403 be applied to all of the
Outstanding Securities of that series upon compliance with the conditions set
forth below in this Article IV.
SECTION 402. Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 401 of the option applicable to
this Section 402, the Issuers shall be deemed to have been discharged from their
obligations with respect to all Outstanding Securities of the particular series
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Issuers
shall be deemed to have paid and discharged all the obligations relating to the
Outstanding Securities of that series and the Securities of that series shall
thereafter be deemed to be "outstanding" only for the purposes of Section 406,
Section 408 and the other Sections of this Indenture referred to below in this
Section 402, and to have satisfied all of their other obligations under such
Securities and this Indenture and cured all then existing Events of Default (and
the Trustee, on demand of and at the expense of the Issuers, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities of the particular series and coupons, if any,
of such series to receive payments in respect of the principal of, premium, if
any, and interest, if any, on such Securities when such payments are due or on
the Redemption Date solely out of the trust created pursuant to this Indenture;
(b) the Issuers' obligations with respect to such Securities concerning issuing
temporary Securities of that series, or, where relevant, registration of such
Securities, mutilated, destroyed, lost or stolen Securities of that series and
the maintenance of an office or agency for payment and money for Security
payments held in trust; (c) the rights, powers, trusts, duties and immunities of
the Trustee for the Securities of that series, and the Issuers' obligations in
connection therewith; and (d) this Article IV and the obligations set forth in
Section 406 hereof.
Subject to compliance with this Article IV, the Issuers may exercise their
option under Section 402 notwithstanding the prior exercise of its option under
Section 403 with respect to the Securities of a particular series.
49
SECTION 403. Covenant Defeasance.
Upon the Issuers' exercise under Section 401 of the option applicable to
this Section 403, the Issuers shall be released from any obligations under the
covenants contained in Sections 704, 801 and 1004 hereof with respect to the
Outstanding Securities of the particular series (and any additional covenants
specified pursuant to Section 301 with respect to such series) on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities of that series shall thereafter be deemed not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, such Covenant Defeasance
means that, with respect to the Outstanding Securities of that series, the
Issuers may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
default or Event of Default under subsection 501(3) but, except as specified
above, the remainder of this Indenture and the Securities of that series shall
be unaffected thereby.
SECTION 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
402 or Section 403 to the outstanding Securities of a particular series:
(a) the Issuers must irrevocably deposit, or cause to be irrevocably
deposited, with the Trustee for the Securities of that series, in trust, for the
benefit of the Holders of the Securities of that series, cash in the currency or
currency unit in which the Securities of that series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of that series
and except as provided in Sections 314(b) and 314(d), in which case the deposit
to be made with respect to Securities for which an election has occurred
pursuant to Section 314(b), or a Conversion Event has occurred as provided in
Section 314(d), shall be made in the currency or currency unit in which the
Securities of that series are payable as a result of such election or Conversion
Event), Government Obligations or a combination thereof in such amounts as will
be sufficient, in the opinion of an internationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest, if any, due on the outstanding Securities of that series and any
related coupons at the Stated Maturity, or on the applicable Redemption Date, as
the case may be, with respect to the outstanding Securities of that series and
any related coupons;
(b) in the case of Legal Defeasance, the Issuers shall have delivered
to the Trustee for the Securities of that series an Opinion of Counsel in the
United States reasonably acceptable to such Trustee confirming that, subject to
customary assumptions and exclusions, (1) the Issuers have received from, or
there has been published by, the U.S. Internal Revenue Service a ruling or (2)
since the date of the Indenture, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel in the United States shall confirm that, subject to
customary assumptions and
50
exclusions, the Holders of the Outstanding Securities of that series will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Legal Defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuers shall have
delivered to the Trustee for the Securities of that series an Opinion of Counsel
in the United States reasonably acceptable to such Trustee confirming that,
subject to customary assumptions and exclusions, the Holders of the Outstanding
Securities of that series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Covenant Defeasance and will be
subject to such tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice or
the lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(4) or Section 501(5)
shall have occurred and be continuing on the 91st day after such date;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under any material agreement
or instrument to which either of the Issuers is a party or by which either of
the Issuers is bound;
(f) the Issuers shall have delivered to the Trustee for the
Securities of that series an Officer's Certificate of each Issuer and an Opinion
of Counsel in the United States (which opinion of counsel may be subject to
customary assumptions and exclusions) each stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant Defeasance, as
the case may be, have been complied with.
SECTION 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect as
to all Securities of any particular series issued hereunder when either (i) all
Securities of that series theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (except (A) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as provided in
Section 305, (B) lost, stolen or destroyed Securities or coupons of such series
which have been replaced or paid as provided in Section 309, (C) coupons
appertaining to Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender is not required as provided in Section 1106 and
(D) Securities and coupons of such series for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Issuers or
discharged from such trust, as provided in the last paragraph of Section 1003)
have been delivered to the Trustee for the Securities of that series for
cancellation or (ii) (A) all Securities of that series and any coupons
appertaining thereto not theretofore delivered to Trustee for cancellation are
due and payable by their terms within one year or have become due and payable by
reason of the making of a notice of redemption and the Issuers have irrevocably
deposited or caused to be deposited with such Trustee as trust funds in trust an
amount of cash in any combination of
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currency or currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except as provided in Sections 314(b) and 314(d), in which case
the deposit to be made with respect to Securities for which an election has
occurred pursuant to Section 314(b) or a Conversion Event has occurred as
provided in Section 314(d), shall be made in the currency or currency unit in
which such Securities are payable as a result of such election or Conversion
Event) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for the
Securities of that series for cancellation for principal, premium, if any, and
accrued and unpaid interest, if any, to the Stated Maturity or Redemption Date,
as the case may be; (B) no Event of Default or event which with the giving of
notice or the lapse of time, or both, would become an Event of Default shall
have occurred and be continuing on the date of such deposit and no Event of
Default under Section 501(4) or Section 501(5) shall have occurred and be
continuing on the 91st day after such date; (C) the Issuers have paid, or caused
to be paid, all sums payable by them under this Indenture; and (D) the Issuers
have delivered irrevocable instructions to the Trustee for the Securities of
that series under this Indenture to apply the deposited money toward the payment
of such Securities and coupons at the Stated Maturity or the Redemption Date, as
the case may be. In addition, the Issuers must deliver an Officer's Certificate
of each Issuer and an Opinion of Counsel to the Trustee for the Securities of
that series stating that all conditions precedent to satisfaction and discharge
have been satisfied.
SECTION 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the
Securities of a particular series referred to in Sections 401, 402, 404, or 405,
the respective obligations of the Issuers and the Trustee for the Securities of
a particular series under Sections 303, 304, 305, 306, 307, 308, 310, 312, 407,
408, 409, 410, and 508, Article Six, and Sections 701, 702, 1002, 1003 and 1006,
shall survive with respect to Securities of that series until the Securities of
that series are no longer outstanding, and thereafter the obligations of the
Issuers and the Trustee for the Securities of a particular series with respect
to that series under Sections 407, 408, 409, and 410 shall survive. Nothing
contained in this Article Four shall abrogate any of the obligations or duties
of the Trustee of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections
404 or 405 with respect to all the Securities of any series not payable in
Dollars, upon the happening of any Conversion Event the Issuers shall be
obligated to make the payments in Dollars required by Section 314(d) to the
extent that the Trustee is unable to convert any Foreign Currency or currency
unit in its possession pursuant to Sections 404 or 405 into the Dollar
equivalent of such Foreign Currency or currency unit, as the case may be. If,
after the deposits referred to in Sections 404 or 405 have been made, (x) the
Holder of a Security is entitled to, and does, elect pursuant to Section 314(b)
to receive payment in a currency or currency unit other than that in which the
deposit pursuant to Sections 404 or 405 was made, or (y) a Conversion Event
occurs as contemplated in Section 314(d), then the indebtedness represented by
such Security shall be fully discharged to the extent that the deposit made with
respect to such Security shall be converted into the currency or currency unit
in which such Security is payable. The Trustee shall return to the Issuers any
non-converted funds or securities in its possession after such payments have
been made.
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SECTION 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Section 404 or 405 have
been satisfied with respect to the Securities of a particular series, (ii) the
Issuers have paid or caused to be paid all other sums payable hereunder by the
Issuers and (iii) the Issuers have delivered to the Trustee for the Securities
of that series an Officer's Certificate of each Issuer and an Opinion of
Counsel, each stating that all conditions precedent referred to in clause (i)
above relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee for the Securities of that series upon written
request shall acknowledge in writing the discharge of all of the Issuers'
obligations under this Indenture except for those surviving obligations
specified in this Article Four.
SECTION 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the
Securities of a particular series pursuant to Section 404 or 405 in respect of
the Securities of that series shall be held in trust and applied by it, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of the Securities and all related coupons of all sums
due and to become due thereon for principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
The Issuers shall pay and indemnify the Trustee for the Securities of a
particular series against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section 404 or 405 with
respect to the Securities of that series or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of outstanding Securities of that series.
SECTION 409. Repayment to the Issuers; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall promptly
pay or return to the Issuers upon Issuer Order by each Issuer any cash or
Government Obligations held by them at any time that are not required for the
payment of the principal of, premium, if any, and interest, if any, on the
Securities and all related coupons for Securities of that series for which cash
or Government Obligations have been deposited pursuant to Section 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the Securities
of any series, or then held by the Issuers, in trust for the payment of the
principal of (and premium, if any) and interest, if any, on any Security of any
particular series and all related coupons appertaining thereto and remaining
unclaimed for two years after such principal (and premium, if any) and interest,
if any, has become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed property law, be
paid to the Partnership on an Issuer Request by each Issuer, or (if then held by
either Issuer) shall be discharged from such trusts; and the Holder of such
Security and all related coupons shall, thereafter, as an unsecured general
creditor, look only to the Issuers for payment thereof, and all liability of
such Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuers as trustees thereof, shall thereupon cease; provided,
however, that such Trustee or
53
such Paying Agent, before being required to make any such repayment may give
written notice to the Holder of such Security in the manner set forth in Section
106, 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, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Issuers, as the case may be.
SECTION 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to
apply any cash or Government Obligations, as applicable, in accordance with
Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Issuers' obligations
under this Indenture and the Securities of that series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 402, 403, 404
or 405 until such time as the Trustee or Paying Agent for that series is
permitted to apply all such cash or Government Obligations in accordance with
Section 402, 403, 404 or 405; provided, however, that if the Issuers have made
any payment of principal, premium, if any, and interest, if any, on any
Securities and any related coupons because of the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Securities and such coupons to receive such payment from the cash or
Government Obligations, as applicable, held by such Trustee or Paying Agent.
ARTICLE V
Remedies
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to any particular
series of Securities means any one of the following events (unless otherwise
specified pursuant to Section 301) and such other events as may be established
with respect to the Securities of such series as contemplated by Section 301
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any installment of interest upon
any Security of that series and any related coupon when it becomes due and
payable, and continuance of such default for a period of 90 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity or default in the
deposit of any sinking fund payment, if any, when and as due by the terms
of any Security of that series; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Issuers in respect of any Security of that series contained
in this Indenture or in such
54
Securities (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with) or in the applicable Board Resolutions or Issuer Orders under which
such series is issued as contemplated by Section 301 and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Issuers by the Trustee for the
Securities of such series or to the Issuers and such Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) the Partnership shall commence any case or proceeding seeking to
have an order for relief entered on its behalf as debtor or to adjudicate
it as bankrupt or insolvent or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition or readjustment of its
debts or any other relief under any bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement, composition, readjustment of debt or
other similar act or law of any jurisdiction, domestic or foreign, now or
hereafter existing; or the Partnership shall apply for a receiver,
custodian or trustee (other than any trustee appointed as a mortgagee or
secured party in connection with the issuance of indebtedness for borrowed
money of the Partnership) of it or for all or a substantial part of its
property; or the Partnership shall make a general assignment for the
benefit of creditors; or the Partnership shall take any corporate action in
furtherance of any of the foregoing; or
(5) an involuntary case or other proceeding shall be commenced
against the Partnership with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
seeking the appointment of a trustee, receiver, liquidator, custodian or
similar official of the Partnership or any substantial part of its
property; and such case or other proceeding (A) results in the entry of an
order for relief or a similar order against the Partnership or (B) shall
continue unstayed and in effect for a period of 60 consecutive days; or
(6) any other Event of Default provided in the Security or the Board
Resolutions with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities
and any related coupons occurs and is continuing, then and in every such case
either the Trustee for the Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may
declare the entire principal amount (or, in the case of (i) OID Securities, such
lesser amount as may be provided for in the terms of that series or (ii) Indexed
Securities, the amount determined in accordance with the specified terms of
those Securities) of all the Securities of that series, to be due and payable
immediately, by a notice in writing to the Issuers (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable,
55
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Issuers and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Issuers have paid or deposited with such Trustee a sum
sufficient to pay in the currency or currency unit in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except as provided in
Sections 314(b) and 314(d)):
(A) all overdue interest on all Securities of that series and
any related coupons;
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon from the date such principal
became due at a rate per annum equal to the rate borne by the
Securities of such series (or, in the case of (i) OID Securities, the
Securities' Yield to Maturity or (ii) Indexed Securities, the rate
determined in accordance with the specified terms of those
Securities), to the extent that the payment of such interest shall be
legally enforceable;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at a rate per annum equal to the rate
borne by the Securities of such series (or, in the case of (i) OID
Securities, the Securities' Yield to Maturity or (ii) Indexed
Securities, the rate determined in accordance with the specified terms
of those Securities); and
(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel and all other amounts due to such
Trustee under Section 607;
and
(2) all Events of Default with respect to the Securities of such
series, other than the nonpayment of the principal of Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 513. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuers covenant that if:
56
(1) default is made in the payment of any interest upon any Security
of any series and any related coupons when such interest becomes due and
payable and such default continues for a period of 90 days; or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity;
the Issuers will, upon demand of the Trustee for the Securities of such series,
pay to it, for the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium if any) and interest, if any, with interest upon the overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest at a
rate per annum equal to the rate borne by such Securities (or, in the case of
(i) OID Securities, the Securities' Yield to Maturity or (ii) Indexed
Securities, the rate determined in accordance with the specified terms of those
Securities); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
607.
If the Issuers fail to pay such amounts forthwith upon such demand, such
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding against the Issuers for the collection of the sums so due
and unpaid, and may prosecute such proceedings to judgment or final decree, and
may enforce the same against the Issuers or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any particular series
occurs and is continuing, the Trustee for the Securities of such series may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of that series by such appropriate judicial proceedings as
such Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to either of the Issuers or any other obligor upon
the Securities of any series or the property of either of the Issuers or of such
other obligor or their creditors, the Trustee for the Securities of such series
(irrespective of whether the principal (or, if the Securities of such series are
(i) OID Securities or (ii) Indexed Securities, such amount as may be due and
payable with respect to such Securities pursuant to a declaration in accordance
with Section 502) of any Security of such series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on either of the Issuers for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise
57
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of such series are (i) OID Securities or (ii)
Indexed Securities, such amount as may be due and payable with respect to
such Securities pursuant to a declaration in accordance with Section 502)
(and premium, if any) and interest, if any, owing and unpaid in respect of
the Securities of such series and any related coupons and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of such Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee under Section
607) and of the Holders of the Securities of such series and any related
coupons allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
(iii) unless prohibited by law or applicable regulations, to vote on
behalf of the Holders of the Securities of such series in any election of a
trustee in bankruptcy or other person performing similar functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities and coupons to make such payments to such Trustee, and in the event
that such Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to such Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel, and any other amounts due such Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the
Securities of any series to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of such series or the rights
of any Holder thereof, or to authorize the Trustee for the Securities or coupons
of any series to vote in respect of the claim of any Holder in any such
proceeding, except as aforesaid, for the election of a trustee in bankruptcy or
other person performing similar functions.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons of any series may be prosecuted and enforced by the Trustee for the
Securities of any series without the possession of any of the Securities or
coupons of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 607, be for the ratable benefit of the
Holders of the Securities and coupons of such series in respect of which such
judgment has been recovered until all amounts owed to them have been paid, and
any remainder shall be paid to the Partnership.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series
pursuant to this Article with respect to the Securities or coupons of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Securities or coupons of such series, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due such Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons of such series for principal of (and premium, if
any) and interest, if any, on such Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Securities of such series of such
default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee for the Securities of such series to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and Offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to such Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of
that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of that
59
series, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Securities of that series.
SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium,
if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 310) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security
or coupon has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Trustee or to such Holder, then
and in every such case the Issuers, such Trustee and the Holders of Securities
or coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of such Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 309, no right or remedy herein conferred upon or reserved to the
Trustee for the Securities of any series or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of
any Holder of any Security of such series to exercise any right or remedy
accruing upon any Event of Default with respect to the Securities of such series
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to such Trustee for the Securities or coupons of any series or
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Trustee or by the Holders, as the case may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Securities of such series with respect to the Securities of that
series or exercising any trust or power conferred on such Trustee with respect
to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture and could not involve the Trustee in personal
liability; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any particular series and any related coupons may on
behalf of the Holders of all the Securities of that series waive any past
default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for the
Securities or coupons of any series for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by (i) the Issuers or (ii) the
Trustee for the Securities of any series, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any particular series or to any suit instituted
by any Holder of any Security or coupon for the enforcement of the payment of
the principal of (or premium, if any) or interest, if any, on any Security of
such series or the payment
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of any coupon on or after the respective Stated Maturities expressed in such
Security or coupon (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. Waiver of Stay or Extension Laws.
Each of the Issuers covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Issuers (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee for any series
of Securities, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect
to any obligation of the Issuers hereunder or under any Security or any related
coupon, it shall become necessary to convert into any other currency or currency
unit any amount in the currency or currency unit due hereunder or under such
Security or coupon, then such conversion shall be made by the Currency
Determination Agent at the Market Exchange Rate as in effect on the date of
entry of the judgment (the "Judgment Date"). If pursuant to any such judgment,
conversion shall be made on a date (the "Substitute Date") other than the
Judgment Date and there shall occur a change between the Market Exchange Rate as
in effect on the Judgment Date and the Market Exchange Rate as in effect on the
Substitute Date, the Issuers agree, to the extent permitted by law, to pay such
additional amounts, if any, as may be necessary to ensure that the amount paid
is equal to the amount in such other currency or currency unit which, when
converted at the Market Exchange Rate as in effect on the Judgment Date, is the
amount due hereunder or under such Security or coupon. Any amount due from the
Issuers under this Section 516 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or coupon. In no event, however, shall
the Issuers be required to pay more in the currency or currency unit due
hereunder or under such Security or coupon at the Market Exchange Rate as in
effect on the Judgment Date than the amount of currency or currency unit stated
to be due hereunder or under such Security or coupon so that in any event the
Issuers' obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Issuers shall be entitled to withhold (or be reimbursed for, as the case may be)
any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
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ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against such
Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Securities has occurred and is continuing, the Trustee for the Securities of
such series shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee for Securities of any series from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any particular series,
determined as provided in Section 512, relating to the time, method and
place of conducting any proceeding for any remedy available to such
Trustee, or exercising any trust or power conferred upon such Trustee,
under this Indenture with respect to the Securities of that series; and
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(4) no provision of this Indenture shall require the Trustee for
any series of Securities to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Securities shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to Securities of any particular series, the Trustee for the Securities
of such series shall give to Holders of Securities of that series, in the manner
set forth in Section 106, notice of such Default known to such Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of that series, or in the deposit of any
sinking fund payment with respect to Securities of that series, such Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of such Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
that series and related coupons; and provided, further, that in the case of any
Default of the character specified in Section 501(3) with respect to Securities
of that series no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Security may rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
discretion, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of an Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order of such
Issuer, and any action of the Board of an Issuer may be sufficiently
evidenced by a Board Resolution of such Issuer;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) such Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and
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protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders
shall have offered to such Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, discretion,
consent, order, bond, debenture or other paper or document, but such
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters at it may see fit, and, if
such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of either of the Issuers, personally or by agent or attorney;
and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and such Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication thereof, and in any coupons shall be
taken as the statements of the Issuers, and neither the Trustee for any series
of Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Securities makes no representations
as to the validity or sufficiency of this Indenture or of the Securities of any
series or coupons. Neither the Trustee for any series of Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Issuers of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent,
Paying Agent, Security Registrar or any other agent of the Issuers or such
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Issuers with the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust
hereunder need not be segregated from other funds except as provided in Section
115 and except to the extent required by law. The Trustee for any series of
Securities shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuers.
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SECTION 607. Compensation and Reimbursement.
The Issuers jointly and severally agree:
(1) to pay to the Trustee for any series of Securities from time to
time such compensation in Dollars (as agreed by the Issuers and the
Trustee) for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee for any series of Securities in Dollars upon its request for all
reasonable expenses, disbursements and advances incurred or made by such
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify such Trustee and its agents in Dollars for, and to
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their
powers or duties hereunder.
As security for the performance of the obligations of the Issuers under
this Section the Trustee for any series of Securities shall have a lien prior to
the Securities upon all property and funds held or collected by such Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest, if any, on particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
SECTION 609. Corporate Trustee Required; Different Trustees for Different
Series; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(i) a corporation organized and doing business under the laws
of the United States of America, any state thereof, or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by Federal or State
authority, or
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(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted to
act as Trustee pursuant to a rule, regulation, or other order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustee, having a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. None of the Issuers or any
Person directly or indirectly controlling, controlled by, or under the
common control of the Issuers shall serve as Trustee for the
Securities. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereunder specified in
this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any
series and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any
time with respect to the Securities of such series by giving written notice
thereof to the Issuers. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee for the
Securities of such series within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any
time with respect to the Securities of such series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to such Trustee and to the Issuers.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply
with Section 310(b) of the Trust Indenture Act pursuant to Section 608
hereof after written request therefor by the Issuers or by any Holder who
has been a bona fide Holder of a Security of such series for at least six
months, unless the Trustee's duty to resign is stayed in accordance with
the provisions of Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuers or by
any such Holder, or
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(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of its
property shall be appointed or any public officer shall take charge or
control of such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Issuers by a Board Resolution of each Issuer may remove such Trustee or
(ii) subject to Section 514, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a
successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office
of Trustee for the Securities of any series for any cause, the Issuers, by a
Board Resolution of each Issuer, shall promptly appoint a successor Trustee with
respect to the Securities of such series and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of such series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Issuers and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee for the Securities of such series and supersede the successor Trustee
appointed by either of the Issuers. If no successor Trustee for the Securities
of such series shall have been so appointed by either of the Issuers or the
Holders and shall have accepted appointment in the manner required by Section
611, and if such Trustee is still incapable of acting, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Issuers shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner and to the extent provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of that series and
the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to
the Securities of any series shall execute, acknowledge and deliver to the
Issuers and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Issuers or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuers, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of either of the Issuers or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Issuers shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Securities of any series
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of such Trustee, shall be the successor of
such Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee or the
Authenticating Agent for such series then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee or Authenticating
Agent, as the case may be, may adopt such authentication and deliver the
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Securities so authenticated with the same effect as if such successor Trustee or
successor Authenticating Agent had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuers.
The Trustee is subject to Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 614. Authenticating Agents.
From time to time the Trustee for the Securities of any series may, in
its sole discretion, appoint one or more Authenticating Agents with respect to
the Securities of such series, which may include the Issuers or any Affiliate of
the Issuers, with power to act on the Trustee's behalf and subject to its
discretion in the authentication and delivery of Securities of such series in
connection with transfers and exchanges under Sections 304, 305, 306 and 1107 as
fully to all intents and purposes as though such Authenticating Agent had been
expressly authorized by those Sections of this Indenture to authenticate and
deliver Securities of such series. For all purposes of this Indenture, the
authentication and delivery of Securities of such series by an Authenticating
Agent for such Securities pursuant to this Section shall be deemed to be
authentication and delivery of such Securities "by the Trustee" for the
Securities of such series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or the
requirements of such supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent for any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent for any series of Securities may resign at any
time by giving written notice of resignation to the Trustee for such series and
to the Issuers. The Trustee for any series of Securities may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Issuers in the manner set
forth in Section 105. Upon receiving such a notice of resignation or upon such a
termination, or
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in case at any time any Authenticating Agent for any series of Securities shall
cease to be eligible under this Section, the Trustee for such series may appoint
a successor Authenticating Agent, shall give written notice of such appointment
to the Issuers and shall give written notice of such appointment to all Holders
of Securities of such series in the manner set forth in Section 106. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee for the Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 607.
If an appointment with respect to one or more series of Securities is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certification of authentication, an
alternate certificate of authentication in the following form:
"This is one of the Securities of the series designated therein described
in the within-mentioned Indenture."
_______________________, as Trustee
By _______________________ By _________________________
As Authenticating Agent Authorized Officer
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ARTICLE VII
Holders' Lists and Reports by Trustee and Issuers
SECTION 701. Issuers to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Issuers will
furnish or cause to be furnished to the Trustee for the Securities of such
series,
(a) semiannually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record Date
or more than two Regular Record Dates in each fiscal year relating to that
series, on June 15 and December 15), a list, in such form as such Trustee
may reasonably require, containing all the information in the possession or
control of the Issuers or any of their Paying Agents other than such
Trustee as to the names and addresses of the Holders of that series as of
such dates,
(b) on semi-annual dates on each year to be determined pursuant
to Section 301 if the Securities of such series do not bear interest, a
list of similar form and content, and
(c) at such other times as such Trustee may request in writing,
within 30 days after the receipt by the Issuers of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
excluding from any such list names and addresses received by such Trustee in its
capacity as Security Registrar for the Securities of such series, if so acting.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
of the Securities of such series contained in the most recent lists furnished to
such Trustee as provided in Section 701 and the names and addresses of Holders
of the Securities of such series received by such Trustee in its capacity as
Security Registrar for such series, if so acting. The Trustee for each series of
Securities may destroy any list relating to such series of Securities furnished
to it as provided in Section 701 upon receipt of a new list relating to such
series so furnished.
(b) If three or more Holders of Securities of any particular series
(hereinafter referred to as "applicants") apply in writing to the Trustee for
the Securities of any such series, and furnish to such Trustee reasonable proof
that each such applicant has owned a Security of that series for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of that series with respect to their rights under this Indenture or
under the Securities of that series and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then
such Trustee shall, within five Business Days after the receipt of such
application, at its election, either
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(i) afford such applicants access to the information preserved
at the time by such Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of that series whose names and addresses appear
in the information preserved at the time by such Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If any such Trustee shall elect not to afford such applicants access to
that information, such Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of that series whose name and
address appears in the information preserved at the time by such Trustee in
accordance with Section 702(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to such Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender, such Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of such Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of
that series or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, such Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise such Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by
receiving and holding the same, agrees with the Issuers and the Trustee for the
Securities of such series that neither of the Issuers, such Trustee, nor any
agent of any of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of the
Securities of such series in accordance with Section 702(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
SECTION 703. Reports by Trustee.
(a) If required by applicable law, within 60 days after May 15 of
each year, the Trustee for the Securities of each series shall mail to each
Holder of the Securities of such series entitled to receive reports pursuant to
Section 704(3), a brief reported dated as of such date that complies with
Section 313(a) of the Trust Indenture Act. The Trustee for the Securities of
each series shall also comply with Sections 313(b), 313(c) and 313(d) of the
Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series
mails such a report to the Holders of Securities of such series, each such
Trustee shall file a copy of that
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report with the Commission and with each stock exchange on which the Securities
of that series are listed. The Issuers shall provide notice to the appropriate
Trustee when the Securities of any series are listed on any stock exchange.
SECTION 704. Reports by Issuers.
The Issuers will:
(1) file with the Trustee for the Securities of such series, within 15
days after the Issuers are required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Issuers may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Issuers are not required to file information, documents or reports pursuant
to either of said Sections, then they will file with such Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such additional information, documents, and
reports with respect to compliance by the Issuers with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations;
(3) transmit by mail to all Holders of Securities of each series
within 30 days after the filing thereof with the Trustee for the Securities
of such series, such summaries of any information, documents and reports
required to be filed by the Issuers, as the case may be pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) deliver to the Trustee, on or before April 15 in each year, an
Officer's Certificate signed by at least one of the principal executive
officer, principal financial officer or principal accounting officer of
such entity, stating whether or not to the knowledge of the signers thereof
the Issuers are in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Issuers shall be in default, specifying all such defaults and the nature
and status thereof of which the signers may have knowledge.
In addition, for so long as any Restricted Securities remain outstanding,
the Partnership shall furnish to the Holders thereof and to prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
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ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
SECTION 801. Issuers May Consolidate, Etc., Only on Certain Terms.
(a) The Partnership shall not consolidate with or merge into any other
Person or sell, transfer or lease all or substantially all its properties to any
Person, and shall not permit any Person to consolidate with or merge into it,
unless:
(1) the Partnership is the surviving Person or Person formed by such
consolidation or into which the Partnership is merged or the Person which
acquires by conveyance or transfer all or substantially all properties of
the Partnership shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee for each series of
Securities, in form satisfactory to each such Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, if any,
(including all additional amounts, if any, payable pursuant to Sections 516
or 1006) on all the Securities and any related coupons and the performance
of every covenant of this Indenture on the part of the Partnership to be
performed or observed;
(2) immediately after giving effect to such transaction, no Default
with respect to any series of Securities, shall have happened and be
continuing;
(3) the Partnership has delivered to the Trustee for each series of
Securities an Officer's Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with;
(4) if, as a result of any such consolidation or merger or such sale,
transfer or lease, properties of the Partnership would become subject to
any Lien which would not be permitted by Section 1004 without equally and
ratably securing the Securities as provided therein, the Partnership or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby pursuant to
Section 1004;
(b) Capital may not consolidate with, merge with or into any Person or
permit any Person to merge with or into it unless:
(1) a limited liability company Subsidiary of the Partnership (which
may be Capital or the successor person of such transaction) expressly
assumes all of the obligations of Capital under the Securities of each
series and the Indenture; or
(2) immediately after given effect to such transaction, at least one
obligor on the securities of each series is a limited liability company.
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SECTION 802. Successor Corporation Substituted.
Upon any consolidation of an Issuer with, or merger of an Issuer into,
any other Person, or any conveyance or transfer or lease of all or substantially
all the properties of the Partnership in accordance with Section 801, the
successor obligor shall succeed to, and be substituted for, and may exercise
every right and power of, the applicable Issuer under this Indenture with the
same effect as if such successor Person had been named as the applicable Issuer
herein and thereafter, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture, the Securities and any related
coupons and, in the event of any such consolidation, merger, conveyance or
transfer, the predecessor Person may thereupon or at any time thereafter be
dissolved, wound up, or liquidated.
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Issuers, when authorized by a Board Resolution of each Issuer and the Trustee
for the Securities of any or all series, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
such Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to either of the
Issuers, and the assumption by any such successor of the covenants of
such Issuer herein and in the Securities; or
(2) to add to the covenants of the Issuers, for the benefit of
the Holders of all or any particular series of Securities and any
related coupons (and, if such covenants are to be for the benefit of
fewer than all series of Securities, stating that such covenants are
being included solely for the benefit of such series), or to surrender
any right or power herein conferred upon the Issuers; or
(3) to add any additional Events of Default with respect to any
or all series of Securities (and, if any such Event of Default applies
to fewer than all series of Securities, stating each series to which
such Event of Default applies); or
(4) to add to or to change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations, to provide for the
issuance of uncertificated Securities of any series in addition to or
in place of any certificated Securities and to make all appropriate
changes for such purposes; provided, however, that any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
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(5) to change or eliminate any of the provisions of this
Indenture, provided, however, that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than First Union National Bank as Trustee
for a series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 609; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions,
limitations and restrictions thereafter to be observed; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401;
provided, however, that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
(10) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable to qualify the indenture
under, or in accordance with any amendments to, the Trust Indenture
Act; or
(11) to issue and establish the form and terms of any series of
Securities; or
(12) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, to
convey, transfer, assign, mortgage or pledge any property to or with
the Trustee for the Securities of any series or to surrender any right
or power herein conferred upon the Issuers, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any particular series in any
material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
The Issuers, when authorized by a Board Resolution of each Issuer, and
the Trustee for the Securities of any or all series may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Securities and any
related coupons under this Indenture, but only with the consent of the Holders
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of more than a majority in aggregate principal amount of the Outstanding
Securities of each series of Securities then Outstanding affected thereby, in
each case by Act of said Holders of Securities of each such series delivered to
the Issuers and the Trustee for Securities of each such series; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) Change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, if any (or,
in the case of OID Securities, reduce the rate of accretion of original
issue discount), or any premium payable upon the redemption thereof, or
change any obligation of the Issuers to pay additional amounts pursuant
to Section 1006 (except as contemplated by Section 801(1) and permitted
by Section 901(1)) or reduce the amount of the principal of an OID
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof, or provable in bankruptcy, or, in
the case of Indexed Securities, reduce the amount payable in accordance
with the terms of those Securities upon a declaration of acceleration
of Maturity thereof, or provable in bankruptcy, pursuant to Section
502, or change the currency or currency unit in which any Security or
the principal or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or impair any right of Holders of Securities
hereunder to require the Issuers to repay or purchase Securities at
their option; or reduce or alter the method of computation of any
amount payable upon redemption, repayment or purchase of any Securities
by the Issuer (or the time when such redemption, repayment or purchase
may be made); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any particular series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513
or 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Security or coupon with respect to changes
in the references to "the Trustee" and concomitant changes in this
Section and Section 1005, or the deletion of this proviso, in
accordance with the requirements of Sections 609, 61l(b), 901(6) and
901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Securities
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee for any series of Securities may, but shall not be obligated to, enter
into any such supplemental indenture which affects such Trustee's own rights,
liabilities, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee for the Securities of such series, bear a
notation in form approved by such Trustee as to any matter provided for in such
supplemental indenture. If the Issuers shall so determine, new Securities of any
series and any related coupons so modified as to conform, in the opinion of the
Trustee for the Securities of such series and the Board of each Issuer, to any
such supplemental indenture may be prepared and executed by the Issuers and such
Securities may be authenticated and delivered by such Trustee in exchange for
Outstanding Securities of such series and any related coupons.
ARTICLE X
Covenants
SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Issuers jointly and severally agree, for the benefit of each
particular series of Securities, that they will duly and punctually pay in the
currency or currency unit in which the
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Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except as provided
in Sections 314(b) and 314(d)) the principal of (and premium, if any) and
interest, if any, on that series of Securities in accordance with the terms of
the Securities of such series, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities
the Issuers will maintain in each Place of Payment for that series an office or
agency where Securities of that series may be presented or surrendered for
payment, an office or agency where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Issuers with respect to the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Issuers will maintain (A) an office or agency (which may be the
same office or agency) in a Place of Payment for that series in the United
States where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Issuers in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on the Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Issuers will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Issuers in
respect of the Securities of that series and this Indenture may be served. The
Issuers will give prompt written notice to the Trustee for the Securities of
that series of the location, and any change in the location, of any such office
or agency. If at any time the Issuers shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee for the Securities of that series with the address thereof, such
presentations (to the extent permitted by law), and surrenders of Securities of
that series may be made and notices and demands may be made or served at the
Corporate Trust Office of such Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, and the Issuers hereby appoint the same
as their agent to receive such respective presentations, surrenders, notices and
demands.
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No payment of principal (and premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Issuers in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States.
Payments will not be made in respect of Bearer Securities or coupons
appertaining thereto pursuant to presentation to the Issuers or their designated
Paying Agents within the United States. Notwithstanding the foregoing, payment
of principal of (and premium, if any) and interest, if any, on any Bearer
Security denominated and payable in Dollars will be made at the office of the
Issuers' Paying Agent in the United States, if, and only if, payment in Dollars
of the full amount of such principal, premium or interest, as the case may be,
at all offices or agencies outside the United States maintained for that purpose
by the Issuers in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions and the Issuers
have delivered to the Trustee an Opinion of Counsel to that effect.
The Issuers may also from time to time designate one or more other offices
or agencies (in or outside the Place of Payment) where the Securities of one or
more series may be presented or surrendered for any or all of the purposes
specified above in this Section and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuers of their obligations to maintain an office or
agency in each Place of Payment for such purpose. The Issuers will give prompt
written notice to the Trustee for the Securities of each series so affected of
any such designation or rescission and of any change in the location of any such
office or agency.
If and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Issuers will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If any Issuer shall at any time act as the Paying Agent with respect to any
particular series of Securities and any related coupons, it will, on or before
each due date of the principal of (and premium, if any) or interest, if any, on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currency unit
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except
as provided in Sections 314(b) and 314(d)) sufficient to pay the principal (and
premium, if any) and interest, if any, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee for the Securities of such series of its action or
failure so to act.
Whenever the Issuers shall have one or more Paying Agents for any
particular series of Securities and any related coupons, they will, prior to
each due date of the principal of (and premium, if any) or interest, if any, on
any such Securities, deposit with a Paying Agent for the Securities of such
series a sum (in the currency or currency unit described in the preceding
paragraph) sufficient to pay the principal (and premium, if any) and interest,
if any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such
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Paying Agent is the Trustee for the Securities of such series) the Issuers will
promptly notify such Trustee of their action or failure so to act.
The Issuers will cause each Paying Agent for any particular series of
Securities other than the Trustee for the Securities of such series to execute
and deliver to such Trustee an instrument in which such Paying Agent shall agree
with such Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Issuers (or
any other obligor upon the Securities) in the making of any payment of
principal (or premium, if any) and interest, if any, on Securities of that
series; and
(3) at any time during the continuation of any such default, upon
the written request of such Trustee, forthwith pay to such Trustee all sums
so held in trust by such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order of each Issuer direct any Paying Agent to pay, to the Trustee for the
Securities of any series all sums held in trust by the Issuers or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Issuers or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
SECTION 1004. Lien on Assets.
The Partnership shall not, and shall not permit any Subsidiary to, Incur
any Secured Debt, without effectively providing concurrently with the Incurrence
of the Secured Debt that the Outstanding Securities will be secured equally and
ratably with, or prior to, such Secured Debt, unless, after giving effect to
such Incurrence, the aggregate amount of all outstanding Secured Debt of the
Partnership and its Subsidiaries would not exceed 15% of Consolidated Net
Tangible Assets.
This restriction will not apply to, and there will be excluded from Secured
Debt in any computation under this Section 1004, Debt secured by:
(1) Liens on property, shares of capital stock or Debt of any
Person existing at the time such Person becomes a Subsidiary; provided that
the Liens were not granted in contemplation of that Person becoming a
Subsidiary;
(2) Liens on property, shares of capital stock or Debt existing
at the time of acquisition thereof by the Partnership or any of its
Subsidiaries; provided that the Liens were not granted in contemplation of
that acquisition;
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(3) Liens on property, shares of capital stock or Debt created at the
time of, or within 360 days after the acquisition or the completion of
construction or improvement of such property, whichever is later, to secure
or provide for the payment of all or any part of the purchase price or the
cost of construction or improvement thereof; provided that
(a) the amount secured does not exceed the purchase price or cost
of construction or improvement; and
(b) the Lien does not extend to any other property, shares or
Debt other than the property, shares or Debt purchased, constructed or
improved;
(4) Liens in favor of the Partnership or any of its Subsidiaries;
(5) Liens incurred or assumed in connection with the issuance of
revenue bonds the interest on which is exempt from Federal income taxation
pursuant to Section 103(b) of the Internal Revenue Code of 1986, as
amended;
(6) Liens existing on the Issue Date;
(7) Liens incurred to finance the acquisition or construction of
property in favor of any country or any of its political subdivisions; or
(8) any extension, renewal, refunding or replacement of the foregoing;
provided that the amount secured by the Lien is not increased and the Lien
does not extend to any additional property or assets.
SECTION 1005. Waiver of Certain Covenants.
The Issuers may omit in any particular instance to comply with any covenant
or condition set forth in Section 1004, if before or after the time for such
compliance the Holders of more than 50% in principal amount of the Outstanding
Securities of each series of Securities affected by the omission shall, in each
case by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Issuers and the duties of the Trustee for the Securities of each series
with respect to any such covenant or condition shall remain in full force and
effect.
SECTION 1006. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this Section 1006
shall be applicable to Securities of any series.
The Issuers will, subject to the exceptions and limitations set forth
below, pay to the Holder of any Security or coupon who is a United States Alien
such additional amounts as may be necessary so that every net payment on such
Security or coupon, after deduction or withholding by the Issuers or any of its
Paying Agents for or on account of any present or future tax, assessment or
other governmental charge imposed upon or as a result of such payment by
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the United States (or any political subdivision or taxing authority thereof or
therein), will not be less than the amount provided in such Security or in such
coupon to be then due and payable. However, the Issuers will not be required to
make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settler or beneficiary
of, or a person holding a power over, such Holder, if such Holder is an estate
or trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including, without
limitation, such Holder (or such fiduciary, settler, beneficiary, person holding
a power, member or shareholder) being or having been a citizen, resident or
treated as a resident thereof or being or having been engaged in trade or
business or present therein or having or having had a permanent establishment
therein, or (ii) such Holder's present or former status as a personal holding
company, foreign personal holding company, controlled foreign corporation or
passive foreign investment company with respect to the United States or as a
corporation that accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of such Security or
coupon for payment on a date more than 10 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
tax or any similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment in respect of any Security or
coupon, if such payment can be made without such withholding by at least one
other Paying Agent;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments in respect of such Security or
coupon;
(f) any tax, assessment or other governmental charge imposed on a
Holder of a Security or coupon that actually or constructively owns 10 percent
or more of the capital or profits of the Partnership entitled to vote within the
meaning of Section 871(h)(3) of the Code or that is a controlled foreign
corporation related to the Issuers through equity ownership;
(g) any tax, assessment or other governmental charge imposed as a
result of the failure to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of a Security or coupon, if such compliance is required by
statute or by regulation of the United States, as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(h) any tax, assessment or other governmental charge imposed with
respect to payments on any Registered Security by reason of the failure of the
Holder to fulfill the statement requirement of Sections 871(h) or 881(c) of the
Code; or
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(i) any combination of items (a), (b), (c), (d), (e), (f), (g) and
(h);
nor will additional amounts be paid with respect to any payment on any such
Security or coupon to a Holder who is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision thereof)
to be included in the income for federal income tax purposes of a beneficiary or
settler with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to payment of the additional
amounts had beneficiary, settler, member or beneficial owner been the Holder of
such Security or coupon.
The term "United States Alien" means any corporation, partnership,
individual or fiduciary that is, as to the United States, a foreign corporation,
a nonresident alien individual, a nonresident fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, as to
the United States, a foreign corporation, a nonresident alien individual or a
nonresident fiduciary of a foreign estate or trust.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of (and premium, if any) and interest, if any, on any Security
or payment with respect to any coupon of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
the terms of such Securities and this Section to the extent that, in such
context, additional amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of additional amounts
as contemplated by Section 301(20), at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to maturity, the first day on which a
payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal (and premium, if any) and interest, if any, if
there has been any change with respect to the matters set forth in the below
mentioned Officer's Certificates, the Issuers will furnish the Trustee for that
series of Securities and the Issuers' principal Paying Agent or Paying Agents,
if other than such Trustee, with an Officer's Certificate of each Issuer
instructing such Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) and interest, if any, on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge referred to above
or described in the Securities of that series. If any such withholding shall be
required, then such Officer's Certificates shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Securities
or coupons and the Issuers will pay to the Trustee for such series of Securities
or such Paying Agent such additional amounts as may be required pursuant to the
terms applicable to such series. The Issuers covenant to indemnify the Trustee
for such series of Securities and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
gross negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer's Certificate
furnished pursuant to this Section 1006.
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ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Issuers to redeem any Securities of any series
shall be evidenced by or pursuant to a Board Resolution or Issuer Order of each
Issuer. In case of any redemption at the election of the Issuers of less than
all of the Securities of any particular series, the Issuers shall, at least 60
days prior to the Redemption Date fixed by the Issuers (unless a shorter notice
shall be satisfactory to the Trustee for the Securities of such series) notify
such Trustee by Issuer Request of each Issuer of such Redemption Date and of the
principal amount of Securities of that series to be redeemed and shall deliver
to such Trustee such documentation and records as shall enable such Trustee to
select the Securities to be redeemed pursuant to Section 1103. In the case of
any redemption of Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Issuers shall furnish the Trustee for
Securities of such series with an Officer's Certificate of each Issuer
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Issuers may
select the series to be redeemed, and if less than all the Securities of any
series are to be redeemed, the particular Securities of that series to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee for the Securities of such series, from the Outstanding Securities
of that series not previously called for redemption, pro rata, by lot or by such
other method as such Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series, or any integral multiple
thereof) of the principal amount of Securities of that series of a denomination
larger than the minimum authorized denomination for Securities of that series
pursuant to Section 302 in the currency or currency unit in which the Securities
of such series are denominated.
The Trustee for the Securities of any series to be redeemed shall
promptly notify the Issuers in writing of the Securities of such series selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series
are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular
Securities to be redeemed, including the CUSIP number of such
Securities,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security or portion thereof, and that
interest thereon, if any (or in the case of OID Securities, original
issue discount), shall cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date are to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price or security or indemnity
satisfactory to the Issuers, the Trustee for such series and any Paying
Agent is furnished, and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Issuers, on which
such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of
the Issuers shall be given by the Issuers or, at the Issuers' request, by the
Trustee for such Securities in the name and at the expense of the Issuers.
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SECTION 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Issuers
shall deposit with the Trustee for the Securities to be redeemed or with a
Paying Agent for such Securities (or, if the Issuers are acting as its own
Paying Agent for such Securities, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such Series and except as provided in Sections
314(b) and 314(d)) sufficient to pay the principal amount of (and premium, if
any, thereon), and (except if the Redemption Date shall be an Interest Payment
Date) any accrued interest on, all the Securities which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currency unit in which the
Securities of such series are payable (except as otherwise provided pursuant to
Section 301 for the Securities of such series and except as provided in Sections
314(b) and 314(d)) and from and after such date (unless the Issuers shall
default in the payment of the Redemption Price) Holders shall have no rights
with respect to such Securities and such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
such Security for redemption in accordance with said notice together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security or specified portions thereof shall be paid by the Issuers at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 310.
If any Bearer Security surrendered for redemption shall not be
accompanied by all coupons appertaining thereto maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons or the surrender of
such missing coupon or coupons may be waived by the Issuers if there is
furnished to the Issuers, the Trustee for such Security and any Paying Agent
such security or indemnity as they may require to save the Issuers, such Trustee
and any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to such Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and,
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unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Security (or, in the case of (i) OID
Securities, the Security's Yield to Maturity or (ii) Indexed Securities, the
rate determined in accordance with the specified terms of those Securities).
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Issuers or the Trustee for
such Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuers and the Security Registrar for such
Security duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Issuers shall execute and such Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities, of any authorized denomination as requested by such
Holder, of the same series and having the same terms and provisions and in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Registered Security so surrendered.
SECTION 1108. Tax Redemption; Special Tax Redemption.
(a) If specified pursuant to Section 301, Securities of any series
may be redeemed at the option of the Issuers in whole, but not in part, on not
more than 60 days' and not less than 30 days' notice, on any Redemption Date at
the Redemption Price specified pursuant to Section 301, if the Issuers determine
that (A) as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or of any
political subdivision or taxing authority thereof or therein affecting taxation,
or any change in official position regarding application or interpretation of
such laws, regulations or rulings (including a holding by a court of competent
jurisdiction in the United States), which change or amendment is announced or
becomes effective on or after a date specified in Section 301 with respect to
any Security of such series, the Issuers have or will become obligated to pay
additional amounts pursuant to Section 1006 with respect to any Security of such
series or (B) on or after a date specified in Section 301 with respect to any
Security of such series, any action has been taken by any taxing authority of,
or any decision has been rendered by a court of competent jurisdiction in, the
United States or any political subdivision or taxing authority thereof or
therein, including any of those actions specified in (A) above, whether or not
such action was taken or decision was rendered with respect to the Issuers, or
any change, amendment, application or interpretation shall be officially
proposed, which, in any such case, in the Opinion of Counsel to the Issuers will
result in a material probability that the Issuers will become obligated to pay
additional amounts pursuant to Section 1006 with respect to any Security of such
series, and (C) in any such case specified in (A) or (B) above the Issuers, in
their business judgment, determines that such obligation cannot be avoided by
the use of reasonable measures available to the Issuers.
89
(b) Unless otherwise specified pursuant to Section 301, if the
Issuers shall determine that any payment made outside the United States by the
Issuers or any of their Paying Agents of principal or interest due in respect of
any Bearer Security (an "Affected Security") of such series or any coupon
appertaining thereto would, under any present or future laws or regulations of
the United States, be subject to any certification, information or other
reporting requirement of any kind, the effect of which requirement is the
disclosure to the Issuers, any Paying Agent or any governmental authority of the
nationality, residence or identity (as distinguished from, for example, status
as a United States Alien) of a beneficial owner of such Affected Security of
such series or coupon that is a United States Alien (other than such a
requirement that (i) would not be applicable to a payment made by the Issuers or
any one of their Paying Agents (A) directly to the beneficial owner or (B) to a
custodian, nominee or other agent of the beneficial owner, (ii) can be satisfied
by such custodian, nominee or other agent certifying to the effect that such
beneficial owner is a United States Alien; provided that, in each case referred
to in clauses (i)(B) or (ii), payment by such custodian, nominee or other agent
to such beneficial owner is not otherwise subject to any such requirement (other
than a requirement which is imposed on a custodian, nominee or other agent
described in item (iv) of this sentence), (iii) would not be applicable to a
payment made by at least one other Paying Agent of the Issuers or (iv) is
applicable to a payment to a custodian, nominee or other agent of the beneficial
owner of such Security who is a United States person (as hereinafter defined), a
controlled foreign corporation for United States tax purposes, a foreign person
50 percent or more of the gross income of which for the three-year period ending
with the close of its taxable year preceding the year of payment is effectively
connected with a United States trade or business, or is otherwise related to the
United States), the Issuers shall elect by notice to the Trustee for such series
of Securities either (x) to redeem the Affected Securities of such series, as a
whole, at a redemption price equal to the principal amount thereof, together
with interest accrued to the date fixed for redemption, or (y) if the conditions
of the next succeeding paragraph are satisfied, to pay the additional amounts
specified in such paragraph. The Issuers shall make such determination and
election as soon as practicable and give prompt notice thereof (the
"Determination Notice") in the manner described in Section 106 stating the
effective date of such certification, information or reporting requirement,
whether the Issuers have elected to redeem the Affected Securities of such
series or to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of the
Affected Securities of such series must take place, as provided in the next
succeeding sentence. If the Issuers elect to redeem the Affected Securities of
such series, such redemption shall take place on such date, not later than one
year after the giving of the Determination Notice, as the Issuers shall specify
by notice to such Trustee given not less than 45 nor more than 75 days before
the Redemption Date. Notice of such redemption of the Affected Securities of
such series shall be given to the Holders thereof not less than 30 days nor more
than 60 days prior to the Redemption Date. Notwithstanding the foregoing, the
issuers shall not so redeem the Affected Securities of such series if the
Issuers shall subsequently determine by notice to the Trustee, not less than 30
days prior to the Redemption Date, that subsequent payments on the Affected
Securities of such series would not be subject to any such certification,
information or other reporting requirement, in which case the Issuers shall give
prompt notice of such subsequent determination in the manner specified in
Section 106 and any earlier redemption notice shall be revoked and be of no
further effect. The right of the Holders of Affected Securities called for
redemption to exchange such Affected Securities for Registered Securities (which
Registered Securities will remain Outstanding
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following such redemption) will terminate on the fifteenth day prior to the
Redemption Date, and no further exchanges of Affected Securities for Registered
Securities shall be permitted unless the Issuers shall have made the subsequent
determination and given the notice referred to in the preceding sentence. As
used hereinabove, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source.
If and so long as the certification, information or other reporting
requirement referred to in the preceding paragraph would be fully satisfied by
payment of a withholding tax, backup withholding tax or similar charge, the
Issuers may elect by notice to the Trustee to pay such additional amounts as may
be necessary so that every net payment made outside the United States following
the effective date of such requirement by the Issuers or any of its Paying
Agents of principal (or premium, if any) or interest, if any, due in respect of
any Affected Security of such series or any coupon appertaining thereto to a
Holder who certifies that the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Issuers, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such withholding tax, backup withholding tax or similar charge (other than a
withholding tax, backup withholding tax or similar charge that (i) is the result
of a certification, information or other reporting requirement described in the
third parenthetical clause of the first sentence of the preceding paragraph or
(ii) is imposed as a result of presentation of any such Affected Security or
such coupon for payment more than 10 days after the date on which such payment
becomes due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in such
Affected Security or such coupon to be then due and payable. In the event the
Issuers elect to pay such additional amounts, (the Issuers' election to exercise
such right to be evidenced by prompt notice to the Trustee for the Securities of
the appropriate series), the Issuers will have the right, at its sole option, at
any time, to redeem the Affected Securities of such series as a whole, but not
in part, at the Redemption Price, subject to the provisions of the last four
sentences of the immediately preceding paragraph. If the Issuers have made the
determination described in the preceding paragraph with respect to
certification, information or other reporting requirements applicable only to
interest and subsequently makes a determination in the manner and of the nature
referred to in such preceding paragraph with respect to such requirements
applicable to principal, the Issuers will redeem the Affected Securities of such
series in the manner and on the terms described in the preceding paragraph
unless the Issuers elect to have the provisions of this paragraph apply rather
than the provisions of the immediately preceding paragraph. If in such
circumstances the Affected Securities of such series are to be redeemed, the
Issuers shall have no obligation to pay additional amounts pursuant to this
paragraph with respect to principal (or premium, if any) or interest accrued and
unpaid after the date of the notice of such determination indicating such
redemption, but will be obligated to pay such additional amounts with respect to
interest accrued and unpaid to the date of such determination. If the Issuers
elect to pay additional amounts pursuant to this paragraph and the condition
specified in the first sentence of this paragraph should no longer be satisfied,
then the Issuers shall promptly redeem the Affected Securities of such series in
whole, but not in part, at the Redemption Price subject to the provisions of the
last four sentences of the immediately preceding paragraph. If the Issuers elect
to, or is required to, redeem the Affected Securities of such series pursuant to
this paragraph, it shall publish in the manner and to the extent provided in
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Section 106 prompt notice thereof. If the Affected Securities of such series are
to be redeemed pursuant to this paragraph, the redemption shall take place on
such date, not later than one year after publication of the notice of
redemption, as the Issuers shall specify by notice to the Trustee for such
series of Securities at least 60 days prior to the Redemption Date. Any
redemption payments made by the Issuers pursuant to this paragraph shall be
subject to the continuing obligation of the Issuers to pay additional amounts
pursuant to this paragraph.
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of This Article.
Redemption of Securities through operation of a sinking fund as permitted
or required by any form of Security issued pursuant to this Indenture shall be
made in accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall conflict with
any provision of this Article, the provision of such form of Security shall
govern.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any particular 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 particular series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any particular series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any particular series as
provided for by the terms of Securities of that series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Issuers (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Issuers pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, however, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee for such Securities at the principal amount thereof and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
particular series of Securities, the Issuers will deliver to the Trustee for the
Securities of such series an Officer's Certificate of each Issuer specifying the
amount of the next ensuing mandatory sinking fund
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payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the currency or
currency unit in which the Securities of that series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of that series
and except as provided in Sections 314(b) and 314(d)) and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and shall state the basis for such credit and
that such Securities have not previously been so credited and will also deliver
to such Trustee any Securities to be so delivered. Such Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Issuers in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer
Securities, may at any time call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, or in London, as
such Trustee shall determine. Notice of every meeting of Holders of Securities
of such series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 20 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Issuers, pursuant to a Board Resolution of
each Issuer, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any such series shall have requested the Trustee for
any such series to call a meeting of the Holders of Securities of such series
for any purpose specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and such
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Issuers or the Holders
of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
93
New York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee for such series and its counsel and any representatives of the Issuers
and their counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly that Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage which is less than a
majority in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
94
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee
for any series of Securities that includes Bearer Securities may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
Securities of such series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer
Securities shall, by an instrument in writing, appoint a temporary chairman of
the meeting, unless the meeting shall have been called by the Issuers or by
Holders of Securities as provided in Section 1302(b), in which case the Issuers
or the Holders of Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him as determined in accordance with Section
115; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting.
95
A record, at least in duplicate, of the proceedings of each meeting of Holders
of Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuers and another to the Trustee for such
series of Securities to be preserved by such Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
96
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of December 17, 2001.
CELLCO PARTNERSHIP
Issuer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
VERIZON WIRELESS CAPITAL LLC
Issuer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
---------
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BY A BENEFICIAL
OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER SECURITY IN
EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO EXCHANGE AN
INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A PERMANENT GLOBAL
SECURITY]
CELLCO PARTNERSHIP
VERIZON WIRELESS CAPITAL CORPORATION
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 17, 2001
(the "Indenture") among Cellco Partnership (the "Partnership"), Verizon Wireless
Capital Corporation ("Capital" and together with the Partnership the "Issuers")
and First Union National Bank, as Trustee. Terms used herein unless otherwise
defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in
the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary Global Security (the
"temporary Global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States persons
(as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of
United States financial institutions (as defined in United States Treasury
Regulation Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing
for their own account or for resale, or (b) United States person(s) who
acquired the beneficial interest in the temporary Global Security through
foreign branches of United States financial institutions and who hold the
beneficial interest in the temporary Global Security through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution hereby agrees, for the
benefit of the Issuers, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale
during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial
institution(s) described in this clause (iii) (whether or not also
described in clause (i) or (ii)), further certify that they have not
acquired the beneficial interest in the temporary Global Security for the
purpose of resale directly or indirectly to a United States person or to a
person within the United States.
"United States person" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership created or organized in or under the
laws of the United States or any political subdivision thereof, (iii) an estate
the income of which is subject to United States
federal income taxation regardless of its source and (iv) a trust (X) that is
subject to the supervision of a court within the United States and the control
of one or more United States persons as described in section 7701(a)(30) of the
Code or (Y) that has a valid election in effect under applicable U.S. Treasury
regulations to be treated as a United States person.
[This certificate excepts and does not relate to $_________ principal
amount of the temporary Global Security held by you for our account as to which
we are not able to provide a certificate in this form. We understand that
exchange of such portion of the temporary Global Security for [definitive Bearer
Securities] [interests in a permanent Global Security] cannot be made until we
are able to provide a certificate in this form.]* We undertake to advise you
promptly by tested telex on or prior to the date on which you intend to submit
your certification relating to the above-captioned Securities held by you for
our account if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
_________________________
[Name of Person Making Certification]
By: ___________________________________
----------------------------
* Delete if inappropriate.
-2-
EXHIBIT B
---------
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CLEARSTREAM REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE
SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
CELLCO PARTNERSHIP
VERIZON WIRELESS CAPITAL LLC
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 17, 2001
(the "Indenture") between Cellco Partnership (the "Partnership"), Verizon
Wireless Capital LLC ("Capital" and together with the Partnership the "Issuers")
and First Union National Bank, as Trustee. Terms used herein unless otherwise
defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the
above-captioned Securities which is herewith submitted to be exchanged for
[definitive Bearer Securities] [interests in a permanent Global Security] (the
"Submitted Portion") as provided in the [Prospectus Supplement] [Offering
Memorandum] dated [insert date thereof] in respect of such issue. This is to
certify that (i) we have received in writing or by tested telex or
electronically (in accordance with the requirements of United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates
with respect to the entire Submitted Portion, substantially in the form of
Exhibit B to the Indenture, and (ii) the Submitted Portion includes no part of
the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
U.S. $__________________
Dated: _________________
[▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as operator of
the Euroclear System]*
[Clearstream]*
By: ____________________________________
----------------------------
* Delete if inappropriate.
EXHIBIT C
---------
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BY A BENEFICIAL
OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
CELLCO PARTNERSHIP
VERIZON WIRELESS CAPITAL LLC
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 17, 2001
(the "Indenture") between Cellco Partnership (the "Partnership"), Verizon
Wireless Capital LLC ("Capital" and together with the Partnership the "Issuers")
and First Union National Bank, as Trustee. Terms used herein unless otherwise
defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in
the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary Global Security (the
"temporary Global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States persons
(as defined below);
(ii) owned by United States person(s) that are (a) foreign branches
of United States financial institutions (as defined in United States
Treasury Regulation Section 1.165-12(c)(1)(v) ("financial institutions"))
purchasing for their own account or for resale, or (b) United States
person(s) who acquired the beneficial interest in the temporary Global
Security through foreign branches of United States financial institutions
and who hold the beneficial interest in the temporary Global Security
through such United States financial institutions on the date hereof (and
in either case (a) or (b), each such United States financial institution
hereby agrees, for the benefit of the Issuers, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder);
or
(iii) owned by financial institution(s) for the purpose of resale
during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial
institution(s) described in this clause (iii) (whether or not also
described in clause (i) or (ii)), further certify that they have not
acquired the beneficial interest in the temporary Global Security for the
purpose of resale directly or indirectly to a United States person or to a
person within the United States.
"United States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject
to United States federal income taxation regardless of its source, and "United
States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction (including the Commonwealth of Puerto Rico).
[This certificate excepts and does not relate to $_________ principal
amount of the temporary Global Security held by you for our account as to which
we are not able to provide a certificate in this form. We understand that
payments, if any, due with respect to such portion of the temporary Global
Security cannot be made until we are able to provide a certificate in this
form.]*
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_________________
[Name of Person Making Certification]
By:_____________________________________
---------------------------------
* Delete if inappropriate.
-2-
EXHIBIT D
---------
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CLEARSTREAM REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY FOR A SERIES TO BE
ISSUED IN BEARER FORM]
CELLCO PARTNERSHIP
VERIZON WIRELESS CAPITAL LLC
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 17, 2001
(the "Indenture") between Cellco Partnership (the "Partnership"), Verizon
Wireless Capital LLC ("Capital" and together with the Partnership the "Issuers")
and First Union National Bank, as Trustee. Terms used herein unless otherwise
defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the
above-captioned Securities for which we hereby request that you make payment to
us of the amounts payable on the relevant payment date (the "Submitted Portion")
as provided in the [Offering Memorandum] [Prospectus Supplement] dated [insert
date thereof] in respect of such issue. This is to certify that (i) we have
received in writing or by tested telex or electronically (in accordance with the
requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)
(ii)) a certificate or certificates with respect to the entire Submitted
Portion, substantially in the form of Exhibit D to the Indenture, and (ii) the
Submitted Portion includes no part of the temporary Global Security excepted in
such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
U.S. $ _____________________
Dated:______________________
[Euroclear Bank S.A./N.V., as operator
of the Euroclear System]*
[Clearstream]*
By: ____________________________________
---------------------
* Delete if inappropriate.
