EXHIBIT 4.c
K. HOVNANIAN ENTERPRISES, INC.
AND
FIRST UNION NATIONAL BANK,
as Trustee
Indenture
Dated as of May 4, 1999
CROSS REFERENCE SHEET*
Section of the Act | Section of Indenture | |||||
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310(a)(1), (2) and (5) | 6.9 | |||||
310(a)(3) and (4) | Inapplicable | |||||
310(b) | 6.8 and 6.10(a), (b) and (d) | |||||
310(c) | Inapplicable | |||||
311(a) | 6.13 | |||||
311(b) | 6.13 | |||||
311(c) | Inapplicable | |||||
312(a) | 4.1 and 4.2(a) | |||||
312(b) | 4.2(a) and (b)(i) and (ii) | |||||
312(c) | 4.2(c) | |||||
313(a) | 4.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) | |||||
313(a)(5) | Inapplicable | |||||
313(b)(l) | Inapplicable | |||||
313(b)(2) | 4.4(b) | |||||
313(c) | 4.4(c) | |||||
313(d) | 4.4(d) | |||||
314(a) | 4.3 | |||||
314(b) | Inapplicable | |||||
314(c)(1) and (2) | 11.5 | |||||
314(c)(3) | Inapplicable | |||||
314(d) | Inapplicable | |||||
314(e) | 11.5 | |||||
314(f) | Inapplicable | |||||
315(a), (c) and (d) | 6.1 | |||||
315(b) | 5.8 | |||||
315(e) | 5.9 | |||||
316(a)(1) | 5.7 | |||||
316(a)(2) | Not required | |||||
316(a) (last sentence) | 7.4 | |||||
316(b) | 5.4 | |||||
317(a) | 5.2 | |||||
317(b) | 3.5(a) | |||||
318(a) | 11.7 |
*This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS | ||||||||||
SECTION 1.1 | Definitions | 1 | ||||||||
ARTICLE TWO SECURITIES | ||||||||||
SECTION 2.1 | Forms Generally | 3 | ||||||||
SECTION 2.2 | Form of Trustee’s Certificate of Authentication | 3 | ||||||||
SECTION 2.3 | Amount Unlimited, Issuable in Series | 6 | ||||||||
SECTION 2.4 | Authentication and Delivery of Securities | 7 | ||||||||
SECTION 2.5 | Execution of Securities | 9 | ||||||||
SECTION 2.6 | Certificate of Authentication | 9 | ||||||||
SECTION 2.7 | Denomination and Date of Securities: Payments of Interest | 9 | ||||||||
SECTION 2.8 | Registration, Transfer and Exchange | 10 | ||||||||
SECTION 2.10 | Cancellation of Securities: Disposition Thereof | 12 | ||||||||
SECTION 2.11 | Temporary Securities | 12 | ||||||||
SECTION 2.12 | CUSIP Numbers | 12 | ||||||||
ARTICLE THREE COVENANTS OF THE ISSUER | ||||||||||
SECTION 3.1 | Payment of Principal and Interest | 12 | ||||||||
SECTION 3.2 | Offices for Notices and Payments, etc. | 13 | ||||||||
SECTION 3.3 | No Interest Extension | 13 | ||||||||
SECTION 3.4 | Appointments to Fill Vacancies in Trustee’s Office | 13 | ||||||||
SECTION 3.5 | Provision as to Paying Agent | 13 | ||||||||
SECTION 3.6 | Limitation on Liens | 13 | ||||||||
ARTICLE FOUR SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE | ||||||||||
SECTION 4.1 | Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders | 15 | ||||||||
SECTION 4.2 | Preservation and Disclosure of Securityholders Lists | 15 | ||||||||
SECTION 4.3 | Reports by the Issuer | 16 | ||||||||
SECTION 4.4 | Reports by the Trustee | 17 | ||||||||
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS ON EVENT OF DEFAULT | ||||||||||
SECTION 5.1 | Events of Default | 17 | ||||||||
SECTION 5.2 | Payment of Securities on Default: Suit Therefore | 18 | ||||||||
SECTION 5.3 | Application of Moneys Collected by Trustee | 19 | ||||||||
SECTION 5.4 | Proceedings by Securityholders | 20 | ||||||||
SECTION 5.5 | Proceedings by Trustee | 20 | ||||||||
SECTION 5.6 | Remedies Cumulative and Continuing | 20 | ||||||||
SECTION 5.7 | Direction of Proceedings; Waiver of Defaults by Majority of Securityholders | 20 | ||||||||
SECTION 5.8 | Notice of Defaults | 21 | ||||||||
SECTION 5.9 | Undertaking to Pay Costs | 21 |
ARTICLE SIX CONCERNING THE TRUSTEE | ||||||||||
SECTION 6.1 | Duties and Responsibilities of the Trustee; During Default; Prior to Default | 21 | ||||||||
SECTION 6.2 | Certain Rights of the Trustee | 22 | ||||||||
SECTION 6.3 | Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof | 23 | ||||||||
SECTION 6.4 | Trustee and Agents May Hold Securities; Collections, etc. | 23 | ||||||||
SECTION 6.5 | Moneys Held by Trustee | 23 | ||||||||
SECTION 6.6 | Compensation and Indemnification of Trustee and Its Prior Claim | 23 | ||||||||
SECTION 6.7 | Right of Trustee to Rely on Officers’ Certificate, etc. | 23 | ||||||||
SECTION 6.8 | Qualification of Trustee; Conflicting Interests | 24 | ||||||||
SECTION 6.9 | Persons Eligible for Appointment as Trustee; Different Trustees for Different Series | 24 | ||||||||
SECTION 6.10 | Resignation and Removal: Appointment of Successor Trustee | 24 | ||||||||
SECTION 6.11 | Acceptance of Appointment by Successor Trustee | 25 | ||||||||
SECTION 6.12 | Merger, Conversion, Consolidation or Succession to Business of Trustee | 26 | ||||||||
SECTION 6.13 | Preferential Collection of Claims Against the Issuer | 26 | ||||||||
SECTION 6.14 | Appointment of Authenticating Agent | 26 | ||||||||
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS | ||||||||||
SECTION 7.1 | Evidence of Action Taken by Securityholders | 27 | ||||||||
SECTION 7.2 | Proof of Execution of Instruments and of Holding of Securities | 27 | ||||||||
SECTION 7.3 | Holders to be Treated as Owners | 27 | ||||||||
SECTION 7.4 | Securities Owned by Issuer Deemed Not Outstanding | 27 | ||||||||
SECTION 7.5 | Right of Revocation of Action Taken | 28 | ||||||||
SECTION 7.6 | Record Date for Consents and Waivers | 28 | ||||||||
ARTICLE EIGHT SUPPLEMENTAL INDENTURES | ||||||||||
SECTION 8.1 | Supplemental Indentures Without Consent of Securityholders | 28 | ||||||||
SECTION 8.2 | Supplemental Indentures with Consent of Securityholders | 29 | ||||||||
SECTION 8.3 | Effect of Supplemental Indenture | 30 | ||||||||
SECTION 8.4 | Documents to Be Given to Trustee | 30 | ||||||||
SECTION 8.5 | Notation on Securities in Respect of Supplemental Indentures | 30 | ||||||||
ARTICLE NINE CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION | ||||||||||
SECTION 9.1 | Issuer May Consolidate, etc., on Certain Terms | 31 | ||||||||
SECTION 9.2 | Successor Corporation to be Substituted | 31 | ||||||||
SECTION 9.3 | Opinion of Counsel to be Given Trustee | 32 | ||||||||
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE; COVENANT DEFEASANCE; UNCLAIMED MONEYS | ||||||||||
SECTION 10.1 | Satisfaction and Discharge of Indenture; Covenant Defeasance | 32 | ||||||||
SECTION 10.2 | Application by Trustee of Funds Deposited for Payment of Securities | 33 | ||||||||
SECTION 10.3 | Repayment of Moneys Held by Paying Agent | 33 | ||||||||
SECTION 10.4 | Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years | 34 | ||||||||
SECTION 10.5 | Indemnity for U.S. Government Obligations | 34 |
ARTICLE ELEVEN MISCELLANEOUS PROVISIONS | ||||||||||
SECTION 11.1 | Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability | 34 | ||||||||
SECTION 11.2 | Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities | 34 | ||||||||
SECTION 11.3 | Successors and Assigns of Issuer Bound by Indenture | 34 | ||||||||
SECTION 11.4 | Notices and Demands on Issuer, Trustee and Holders of Securities | 34 | ||||||||
SECTION 11.5 | Officers’ Certificates and Opinions of Counsel: Statements to Be Contained Therein | 35 | ||||||||
SECTION 11.6 | Payments Due on Saturdays, Sundays and Holidays | 35 | ||||||||
SECTION 11.7 | Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 | 35 | ||||||||
SECTION 11.8 | GOVERNING LAW | 36 | ||||||||
SECTION 11.9 | Counterparts | 36 | ||||||||
SECTION 11.10 | Effect of Headings | 36 | ||||||||
ARTICLE TWELVE REDEMPTION OF SECURITIES AND SINKING FUNDS | ||||||||||
SECTION 12.1 | Applicability of Article | 36 | ||||||||
SECTION 12.2 | Notice of Redemption; Partial Redemptions | 36 | ||||||||
SECTION 12.3 | Payment of Securities Called for Redemption | 37 | ||||||||
SECTION 12.4 | Exclusion of Certain Securities from Eligibility for Selection for Redemption | 37 | ||||||||
SECTION 12.5 | Mandatory and Optional Sinking Funds | 37 | ||||||||
ARTICLE THIRTEEN GUARANTEE | ||||||||||
SECTION 13.1 | Guarantee | 39 | ||||||||
SECTION 13.2 | Obligations of the Guarantor Unconditional | 39 | ||||||||
SECTION 13.3 | Article 13 Not To Prevent Events of Default | 40 | ||||||||
SECTION 13.4 | Execution and Delivery of Guarantee | 40 |
INDENTURE
W I T N E S S E T H
Article 1.
ARTICLE ONE
DEFINITIONS
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such Person in respect of any indebtedness of another that is outstanding on the date of this Indenture or is thereafter created, assumed or incurred by such Person; and (vi) obligations of such Person under interest rate, commodity or currency swaps, caps, collars, options and similar arrangements; and
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shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
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either at all times or, so long as there is no default or contingency which permits the holders of any other class or classes of securities to vote for the election of one or more directors.
Article 2.
ARTICLE TWO
SECURITIES
By | _______________ Authorized Signatory |
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By | _______________ as Authenticating Agent |
By | _______________ Authorized Signatory |
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(c) the maturity date or dates, original issue date or dates, interest rate or rates, if any, and any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures, (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing and (e) after the original issuance of the first Security of such series to be issued, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issuance will be deemed to be a certification by the Issuer that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and delivery of such Securities;
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upon opinions of other counsel (copies of which shall be delivered to the Trustee), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes that both such counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent such counsel deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials.
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for such Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor Depositary with respect to such Securities. If a successor Depositary for such Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant to Section 2.3 that such Securities be represented by one or more Global Securities shall no longer be effective and the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive registered form, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such Securities in exchange for such Global Security or Securities.
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(without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to hold each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to the Trustee’s satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Article 3.
ARTICLE THREE
COVENANTS OF THE ISSUER
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permit any mortgage, pledge, security interest or other lien upon, any property or assets owned by the Issuer or any Restricted Subsidiary to secure any Indebtedness, without making effective provision whereby the Securities then Outstanding shall (so long as such other Indebtedness shall be so secured) be equally and ratably secured with any and all such other Indebtedness and any other indebtedness similarly entitled to be equally and ratably secured;provided, however, that this restriction shall not apply to nor prevent the creation or existence of:
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Article 4.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
provided that if and so long as the Trustee shall be the registrar for such series, such list shall not be required to be furnished.
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Article 5.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS ON EVENT OF DEFAULT
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of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security over any other Security, ratably to the aggregate of such principal and accrued and unpaid interest; and
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exercising any trust or power conferred on the Trustee with respect to Securities of such series;provided, however, that (subject to the provisions of Section 6.1) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine upon advice of counsel that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, its executive committee, or a trust committee of directors or Responsible Officers or both shall determine that the action or proceeding so directed would involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount of the Securities of any series then Outstanding may on behalf of the Holders of all of the Securities of such series waive any past default or Event of Default hereunder and its consequences except a default in the payment of interest, if any, on, or the principal of, the Securities of such series. Upon any such waiver the Issuer, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 5.7, said default or Event of Default shall for all purposes of the Securities and this Indenture be deemed to have been cured and to be not continuing.
Article 6.
ARTICLE SIX
CONCERNING THE TRUSTEE
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be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
(b) | In case at any time any of the following shall occur: |
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or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Article Five, any Securityholder who has been abona fide Holder of a Security or Securities 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 the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
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after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Issuer.
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of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
Article 7.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
27
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
Article 8.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
28
an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
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if any, thereon (or, in the case of an Original Issue Discount Security, reduce the rate of accretion of original issue discount thereon), or reduce or alter the method of computation of any amount payable on redemption, repayment or purchase by the Issuer thereof (or the time at which any such redemption, repayment or purchase may be made), or make the principal thereof (including any amount in respect of original issue discount), or interest, if any, thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms of the Securities, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment or purchase at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected. No consent of any Holder of any Security shall be necessary under this Section 8.2 to permit the Trustee and the Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
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to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Issuer, and such Securities may be authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
Article 9.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE,
EXCHANGE OR OTHER DISPOSITION
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Article 10.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
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immunities of the Trustee hereunder, (v) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vi) the obligations of the Issuer under Section 3.2 with respect to Securities of such series) and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent contemplated by this provision have been complied with, and at the cost and expense of the Issuer, shall execute proper instruments acknowledging the same.
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the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Article 11.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
34
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
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Article 12.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
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in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series 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 of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
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(b) stating that none of the Securities of such series to be so credited has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured or otherwise ceased to exist) and are continuing, and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officers’ Certificate and Securities (subject to the parenthetical clause in the second preceding sentence) specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof, and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section 12.5.
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Article 13.
ARTICLE THIRTEEN
GUARANTEE
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due and payable in accordance with the provisions of this Guarantee or is intended to or shall affect the relative rights of the Holders and creditors of the Guarantor, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon Default under this Indenture in respect of cash, property or securities of the Guarantor received upon the exercise of any such remedy;
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By: /s/ | ||
Title: |
By: /s/ | ||
Title: |
By: /s/ | ||
Title: |
By: /s/ | Stephanie Roche | |
Title: | Vice President |
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EXHIBIT A
[FORM OF NOTATION OF SECURITY
RELATING TO GUARANTEE]
GUARANTEE
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