Exhibit 4.1(a)
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Comcast Cable Communications, Inc.
and
Bank of Montreal Trust Company
___________________________________
Indenture
Dated as of May 1, 1997
___________________________________
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TABLE OF CONTENTS (1)
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ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.....................................................1
Section 1.02. Other Definitions...............................................6
Section 1.03. Incorporation by Reference of Trust Indenture Act...............7
Section 1.04. Rules of Construction...........................................8
ARTICLE 2
The Securities
Section 2.01. Form............................................................8
Section 2.02. Execution and Authentication....................................8
Section 2.03. Amount Unlimited; Issuable in Series...........................10
Section 2.04. Denomination and Date of Securities; Payments of Interest......12
Section 2.05. Registrar and Paying Agent; Agents Generally...................13
Section 2.06. Paying Agent to Hold Money in Trust............................13
Section 2.07. Transfer and Exchange..........................................14
Section 2.08. Replacement Securities.........................................17
Section 2.09. Outstanding Securities.........................................18
Section 2.10. Temporary Securities...........................................19
Section 2.11. Cancellation...................................................19
Section 2.12. CUSIP Numbers..................................................20
Section 2.13. Defaulted Interest.............................................20
Section 2.14. Series May Include Tranches....................................20
Section 2.15. Computation of Interest........................................20
ARTICLE 3
Redemption
Section 3.01. Applicability of Article.......................................21
Section 3.02. Notice of Redemption; Partial Redemptions......................21
Section 3.03. Payment of Securities Called for Redemption....................23
Section 3.04. Exclusion of Certain Securities from Eligibility for Selection
for Redemption.................................................24
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(1) Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
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Section 3.05. Mandatory and Optional Sinking Funds...........................24
ARTICLE 4
Covenants
Section 4.01. Payment of Securities..........................................27
Section 4.02. Maintenance of Office or Agency................................28
Section 4.03. Certificate to Trustee.........................................29
Section 4.04. Reports by the Company.........................................29
ARTICLE 5
Successor Corporation
Section 5.01. When Company May Merge, Etc....................................29
Section 5.02. Successor Substituted..........................................30
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default..............................................31
Section 6.02. Acceleration...................................................32
Section 6.03. Other Remedies.................................................33
Section 6.04. Waiver of past Defaults........................................33
Section 6.05. Control by Majority............................................34
Section 6.06. Limitation on Suits............................................34
Section 6.07. Rights of Holders to Receive Payment...........................35
Section 6.08. Collection Suit by Trustee.....................................35
Section 6.09. Trustee May File Proofs of Claim...............................35
Section 6.10. Application of Proceeds........................................36
Section 6.11. Restoration of Rights and Remedies.............................37
Section 6.12. Undertaking for Costs..........................................37
Section 6.13. Rights and Remedies Cumulative.................................37
Section 6.14. Delay or Omission Not Waiver...................................38
ARTICLE 7
Trustee
Section 7.01. General........................................................38
Section 7.02. Certain Rights of Trustee......................................38
Section 7.03. Individual Rights of Trustee...................................40
Section 7.04. Trustee's Disclaimer...........................................40
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Section 7.05. Notice of Default..............................................41
Section 7.06. Reports by Trustee to Holders..................................41
Section 7.07. Compensation and Indemnity.....................................41
Section 7.08. Replacement of Trustee.........................................42
Section 7.09. Successor Trustee by Merger, Etc...............................43
Section 7.10. Eligibility....................................................44
Section 7.11. Money Held in Trust............................................44
ARTICLE 8
Discharge of Indenture
Section 8.01. Defeasance Within One Year of Payment..........................44
Section 8.02. Defeasance.....................................................45
Section 8.03. Covenant Defeasance............................................46
Section 8.04. Application of Trust Money.....................................47
Section 8.05. Repayment to Company...........................................48
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.....................................48
Section 9.02. With Consent of Holders........................................49
Section 9.03. Effect of Consent..............................................51
Section 9.04. Notation on or Exchange of Securities..........................52
Section 9.05. Trustee to Sign Amendments, Etc................................52
Section 9.06. Conformity with Trust Indenture Act............................52
ARTICLE 10
Miscellaneous
Section 10.01. Trust Indenture Act of 1939...................................52
Section 10.02. Notices.......................................................52
Section 10.03. Certificate and Opinion as to Conditions Precedent............54
Section 10.04. Statements Required in Certificate or Opinion.................54
Section 10.05. Evidence of Ownership.........................................54
Section 10.06. Rules by Trustee, Paying Agent or Registrar...................55
Section 10.07. Payment Date Other Than a Business Day........................55
Section 10.08. Governing Law.................................................56
Section 10.09. No Adverse Interpretation of Other Agreements.................56
Section 10.10. Successors....................................................56
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Section 10.11. Duplicate Originals...........................................56
Section 10.12. Separability..................................................56
Section 10.13. Table of Contents, Headings, Etc..............................56
Section 10.14. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability..............................56
Section 10.15. Judgment Currency.............................................57
SIGNATURES
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INDENTURE, dated as of May 1, 1997, between Comcast Cable Communications,
Inc., a Delaware corporation (the "Company"), and Bank of Montreal Trust
Company, a New York banking corporation (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of its
debentures, notes or other evidences of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and to
provide, among other things, for the authentication, delivery and administration
of the Securities, the Company has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Company and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Securities or of any and all series thereof and of the coupons, if any,
appertaining thereto as follows:
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions. Unless otherwise provided by or pursuant to a
Board Resolution or supplemental indenture establishing the terms of one or more
series of Securities the following terms, as used herein, shall have the
following meanings:
"Agent" means any Registrar, Paying Agent, transfer agent or Authenticating
Agent.
"Authorized Newspaper" means (i) The Wall Street Journal (Eastern Edition),
or, if The Wall Street Journal is no longer customarily printed at least once a
day for at least five days in each calendar week or no longer is of general
circulation in the City of New York, then another newspaper published in English
customarily published at least once a day for at least five days in each
calendar
week and of general circulation in The City of New York, or (ii) the Luxembourg
Wort, but only with respect to notices to be given to Holders of Securities
other than Registered Securities. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board Resolution" means one or more resolutions of the board of directors
of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary of the Company to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, a day that is not a day
on which banking institutions are authorized or required by law or regulation to
close, in the city (or in any of the cities, if more than one) unless otherwise
specified, in which amounts are payable, as specified in the form of such
Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"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 Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 77 Water
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Street, 4th Floor, New York, New York, 10005, Attention: Corporate Trust
Department.
"Default" means any Event of Default as defined in Section 6.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 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 Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any Security
with respect to Registered Securities and the bearer of any Unregistered
Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture and shall include the forms and terms of the Securities of each series
established as contemplated pursuant to Sections 2.01 and 2.03.
"Officer" means, with respect to the Company, the chairman of the board of
directors, the chairman, any vice chairman, the president, the executive vice
president, any senior vice president, the treasurer or any assistant treasurer,
or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the chairman, any vice
chairman, the president, the executive vice president or any senior vice
president and (ii) by the treasurer or any assistant treasurer, or the secretary
or any assistant secretary, complying with Section 10.04 and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include
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(except as otherwise expressly provided in this Indenture) the statements
provided in Section 10.04.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company, satisfactory to the Trustee and
complying with Section 10.04. Each such opinion shall comply with Section 314 of
the Trust Indenture Act and include the statements provided in Section 10.04, if
and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such
Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" of a Security means the principal amount of, and, unless the
context indicates otherwise, includes any premium payable on, the Security.
"Registered Global Security" means a Security evidencing all or a part of a
series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.05).
"Responsible Officer" means, when used with respect to the Trustee, any
vice president, assistant vice president, treasurer, assistant treasurer,
secretary,
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assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company organized and
existing under the laws of the United States of America and the principal
business of which is the cable communications industry carried on within the
United States of America other than:
(i) each Subsidiary the major part of whose business consists of
finance, banking, credit, leasing, insurance, financial services or other
similar operations, or any combination thereof; and
(ii) each Subsidiary formed or acquired after the date hereof for the
purpose of acquiring the business or assets of another person and which
does not acquire all or any substantial part of the business or assets of
the Company or any Restricted Subsidiary;
provided, however, that any Subsidiary may be declared a Restricted
Subsidiary by Board Resolution, effective as of the date such Board
Resolution is adopted; provided, further, that any such declaration may be
rescinded by further Board Resolution, effective as of the date such further
Board Resolution is adopted.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of all votes
represented by all classes of outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until replaced by a successor or successors in accordance with the
provisions of Article 7 and thereafter means such successor or successors.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
it may be amended from time to time.
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"UCC" means the Uniform Commercial Code, as in effect in each applicable
jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"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.
"Wholly-Owned" is defined to mean, with respect to any Subsidiary of any
person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
Section 1.02. Other Definitions. Each of the following terms is defined in
the section set forth opposite such term:
Term Section
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Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
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Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture. The following
terms used in this Indenture that are defined by the Trust Indenture Act have
the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, or would be so required were this Indenture duly qualified under the Trust
Indenture Act, such required provision shall control.
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Section 1.04. Rules of ConstructionUnless the context otherwise requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
ARTICLE 2
The Securities
Section 2.01. Form. The Securities of each series shall be substantially
in such form or forms (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law, or with any rules of any
securities exchange or usage, all as may be determined by the officers executing
such Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
Section 2.02. Execution and Authentication. The chairman of the board of
directors, the chairman, any vice chairman, the president, the executive vice
president, any senior vice president, the treasurer or any assistant treasurer
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
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signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid. Delivery by
facsimile transmission shall not affect the validity of the Securities.
The Trustee, at the expense of the Company, may appoint an authenticating
agent (the "Authenticating Agent") to authenticate Securities (other than
coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
(subject to Article 7) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture referred
to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of
the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms and terms of
the Securities, stating that the form or forms and terms of the Securities
of such series have been, or will be when established in accordance with
such procedures as shall be referred to therein, established in compliance
with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the
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purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors' rights
generally, general principles of equity, and such other matters as shall be
specified therein.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series or a portion thereof are to be issued in the form of one or more
Registered Global Securities, then the Company shall execute and the Trustee
shall authenticate and make available for delivery one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of all of the Securities of such series issued
in such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series (subject to the last sentence of this
Section 2.03),
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
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series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(3) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(5) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities;
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(10) any exceptions or additional conditions applicable to the
provisions of Section 5.01;
(11) any other events of default or covenants with respect to the
Securities of the series; and
(12) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
Section 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the Officers of the Company executing the same may determine, as evidenced by
their execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as contemplated
by Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term
12
"record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.03, or, if
no such date is so established, the fifteenth day next preceding such
interest payment date, whether or not such record date is a Business Day.
Section 2.05. Registrar and Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented
for registration, registration of transfer or exchange (the "Registrar") and
an office or agency where Securities may be presented for payment (the
"Paying Agent"), which shall be in the Borough of Manhattan, The City of New
York. The Company shall cause the Registrar to keep a register of the
Registered Securities and of their registration, transfer and exchange (the
"Security Register"). The Company may have one or more additional Paying
Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the
name and address of any Agent and any change in the name or address of an
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such. The Company may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any affiliate of the Company may act as Paying
Agent or Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and Paying
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall
make available to the Trustee ten days prior to each interest payment date
and at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
Section 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest
on
13
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing
so, the Paying Agent shall have no further liability for the money so paid
over to the Trustee. If the Company or any affiliate of the Company acts as
Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid
to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee in writing of its action or failure to act
as required by this Section.
Section 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established
pursuant to Section 2.03, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 4.02, with, in the case of Unregistered
Securities that have coupons attached, all unmatured coupons and all matured
coupons in default thereto appertaining, and upon payment, if the Company
shall so require, of the charges hereinafter provided. At the option of the
14
Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise established pursuant to Section 2.03, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such
purpose in accordance with Section 4.02, with, in the case of Unregistered
Securities that have coupons attached, all unmatured coupons and all matured
coupons in default thereto appertaining, and upon payment, if the Company
shall so require, of the charges hereinafter provided. Registered Securities
of any series may not be exchanged for Unregistered Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to
the Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made
for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes
15
aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery Registered Securities of such series and
tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event, or in the event that there shall have occurred
and be continuing an Event of Default with respect to a series of Securities,
the Company will, upon the request of any Holder, execute, and the Trustee,
upon receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole
or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the Registered
Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
16
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate or an
Opinion of Counsel in determining such result.
Neither the Registrar nor the Company shall be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series
for a period of 15 days before a selection of such Securities to be redeemed
or (ii) to register the transfer of or exchange any Security selected for
redemption in whole or in part.
Section 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully taken,
the Company shall, subject to the further provisions of this Section 2.08,
issue and the Trustee shall authenticate a replacement Security of such
series and tenor and principal amount bearing a number not contemporaneously
outstanding. The Company may charge such Holder for any tax or other
governmental charge that may be imposed as a result of or in connection with
replacing a Security and for its expenses and the expenses of the Trustee
(including without limitation attorneys' fees and expenses)
17
in replacing a Security. In case any such mutilated, defaced, lost, destroyed
or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof. If required by the Trustee or
the Company, (i) an indemnity bond must be furnished that is sufficient in
the judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced or paid as provided in this Section 2.08 and (ii) in the case of
lost, destroyed or wrongfully taken Security, evidence must be furnished to
the satisfaction of both the Trustee and the Company of the loss, destruction
or wrongful taking of such Security. Notwithstanding the foregoing, the
Company and the Trustee shall have no obligation to replace or pay a Security
pursuant to this Section 2.08 if either the Company or the Trustee has notice
that such Security has been acquired by a bona fide purchaser.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this Section
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
Section 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except
for those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities
18
shall have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any affiliate
of the Company shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any
Securities so owned which are pledged by the Company, or by any affiliate of
the Company, as security for loans or other obligations, otherwise than to
another such affiliate of the Company, shall be deemed to be outstanding, if
the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its discretion the right to vote such securities,
uncontrolled by the Company or by any such affiliate.
Section 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary
Securities, as evidenced by their execution of such temporary Securities. If
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it
has paid in full or delivered to the Trustee for cancellation.
19
Section 2.12. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation
shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
Section 2.13. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different
tranches may have one or more different terms, including authentication dates
and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering
price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and
9.02, if any series of Securities includes more than one tranche, all
provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise
provided with respect to such series or tranche pursuant to Section 2.03. In
particular, and without limiting the scope of the next preceding sentence,
any of the provisions of such sections which provide for or permit action to
be taken with respect to a series of Securities shall also be deemed to
provide for and permit such action to be taken instead only with respect to
Securities of one or more tranches within that series (and such provisions
shall be deemed satisfied thereby), even if no comparable action is taken
with respect to Securities in the remaining tranches of that series.
Section 2.15. Computation of Interest. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of
20
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE 3
Redemption
Section 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Registered Securities of such series at their
last addresses as they shall appear upon the Security Register of the
Company. Notice of redemption to the Holders of Unregistered Securities of
any series to be redeemed as a whole or in part, who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were
so furnished to the Trustee (and, in the case of any such notice given by the
Company, the Trustee shall make such information available to the Company for
such purpose). Notice of redemption to all other Holders of Unregistered
Securities of any series to be redeemed as a whole or in part shall be
published in an Authorized Newspaper, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more
than 60 days prior to the date fixed for redemption. Any notice which is
mailed or published in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of
any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed,
the CUSIP and CINS numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of
21
Securities with coupons attached thereto, of all coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series and tenor in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or,
if the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 2.06) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If all of the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 10 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.02
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating that all such Securities are to be redeemed. If less than
all the outstanding Securities of a series are to be redeemed, the Company
will deliver to the Trustee at least 15 days prior to the last date on which
notice of redemption may be given to Holders pursuant to the first paragraph
of this Section 3.02 (or such shorter period as shall be acceptable to the
Trustee) an Officers' Certificate stating the aggregate principal amount of
such Securities to be redeemed. In case of a redemption at the election of
the Company prior to the expiration of any restriction on such redemption,
the Company shall deliver to the Trustee, prior to the giving of any notice
of redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for
22
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Company 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 shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
Section 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11
and 8.04, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the
Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that payment of
interest becoming due on or prior to the date fixed for redemption shall be
payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or
coupons may
23
be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in a written statement signed by an Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Company or (b) an
entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company.
Section 3.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of
any series is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except
as aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the
24
Company will deliver to the Trustee an Officers' Certificate (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of specified Securities of
such series and the basis for such credit, (b) stating that none of the
specified Securities of such series 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)
and are continuing and (d) stating whether or not the Company 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 Company 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 Company 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 2.11 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 Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities 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 Company
(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 Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect
to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum)
is available. The Trustee shall select, in the manner provided in Section
3.02, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption
25
under this Section if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 60 days
prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Company or
(b) an entity specifically identified in such Officers' Certificate as
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 3.02 (and with the
effect provided in Section 3.03) for the redemption of Securities of such
series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment
of the Principal of, and interest on, the Securities of such series at
maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received
from the Company a sum sufficient for such redemption. Except as aforesaid,
any moneys in the sinking fund for such series at the time when any such
Default or Event of Default shall occur, and any moneys thereafter paid into
the sinking fund, shall, during the continuance of such Default or Event of
Default, be deemed to have been collected under Article 6 and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.04 or the Default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
26
ARTICLE 4
Covenants
Section 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be paid, as to the
installments of interest evidenced by coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Unregistered Securities for
notation thereon of the payment of such interest. The interest on Registered
Securities (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to the Holders thereof and at
the option of the Company may be paid by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses
as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.03, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may
be agreed to between the Company and the Paying Agent), directly to the
Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in
the case of payments of Principal surrenders the same to the Trustee in
exchange for a Security or Securities aggregating the same principal amount
as the unredeemed principal amount of the Securities surrendered. The Trustee
shall be entitled to rely on the last instruction delivered by the Holder
pursuant to this Section 4.01 unless a new instruction is delivered 15 days
prior to a payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense
(including attorneys' fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement
or from making any payment in accordance with any such agreement.
27
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
Section 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company hereby initially
designates the Corporate Trust Office of the Trustee, located in the Borough
of Manhattan, The City of New York, as such office or agency of the Company.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which
the Securities of any series are listed) where the Unregistered Securities,
if any, of each series and coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or coupon will
be made upon presentation of such Unregistered Security or coupon at an
agency of the Company within the United States nor will any payment be made
by transfer to an account in, or by mail to an address in, the United States
unless, pursuant to applicable United States laws and regulations then in
effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States
Dollars ("Dollars") at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
may be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
28
Section 4.03. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than ninety days after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or
her knowledge of the compliance of the Company with all conditions and
covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
Section 4.04. Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 5
Successor Corporation
Section 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into or a sale, conveyance, transfer, lease or other
disposition to a Wholly-Owned Restricted Subsidiary with a positive net
worth; provided that, in connection with any such merger of the Company with
a Wholly-Owned Restricted Subsidiary, no consideration (other than common
stock) in the surviving person or the Company) shall be issued or distributed
to the stockholders of the Company) or permit any Person to merge with or
into the Company (subject to such exceptions as may be established pursuant
to Section 2.03 with respect to the Securities of all series then
Outstanding) unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or
29
into which the Company is merged or that acquired or leased such property
and assets of the Company shall be a corporation organized and validly
existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the obligations
of the Company on all of the Securities and under this Indenture;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Company delivers to the Trustee an Officers' Certificate
and Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture complies with this
Section 5.01 and that all conditions precedent provided for herein
relating to such transaction have been complied with; and
(iv) such other conditions as may be established pursuant to Section
2.03 with respect to the Securities of any series then Outstanding.
provided, however, that the foregoing limitations shall not apply if, in the
good faith determination of the board of directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the state of incorporation of the Company;
and provided further that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
Section 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance
with Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein.
30
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default. An "Event of Default" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of (or premium if any, on) any Security of such series when the
same becomes due and payable at maturity, upon acceleration, redemption or
mandatory repurchase, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such
default or breach continues for a period of 30 consecutive days after
written notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by the Holders of 25% or more in aggregate
principal amount of the Securities of such series;
(d) there occurs with respect to any issue or issues of indebtedness
of the Company or any of its Subsidiaries (other than any Security of such
series) having an outstanding principal amount of $50,000,000 or more in
the aggregate for all such issues of all such persons, whether such
indebtedness exists at the date of this Indenture or shall hereafter be
created (A) an event of default, as defined in any such indebtedness, that
has caused the holder thereof to declare such indebtedness to be due and
payable prior to its stated maturity and/or (B) the failure to make a
principal payment at final (but not any interim) fixed maturity;
(e) any court, administrative panel, commission or similar entity
shall render any final judgment or order (not covered by insurance) for
the payment of money in excess of $50,000,000 in the aggregate for all
such final judgments or orders (treating any deductibles, self-insurance,
or retention as not so covered) against the Company or any of its
Subsidiaries and such judgment or order shall not be paid or discharged,
and there shall be any period of 60 consecutive days following entry of
the final judgment or order that causes the aggregate amount for all such
final judgements or
31
orders outstanding and not paid or discharged against all such Persons to
exceed $50,000,000 during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect;
(f) a court having jurisdiction enters a decree or order for (A)
relief in respect of the Company or any of its Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency, or other
similar law in effect as of the date of this Indenture or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official of the Company or any of its
Subsidiaries or for all or substantially all of the property and assets of
the Company or any of its Subsidiaries or (C) the winding up or
liquidation of the affairs of the Company or any of its Subsidiaries and,
in each case, such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days;
(g) the Company or any of its Subsidiaries (A) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any of its
Subsidiaries or for all or substantially all of the property and assets of
the Company or any of its Subsidiaries or (C) effects any general
assignment for the benefit of creditors; or
(h) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
Section 6.02. Acceleration. If an Event of Default (other than an Event
of Default specified in clause (f) or (g) of Section 6.01 with respect to the
Company) occurs with respect to the Securities of any series then outstanding
and is continuing, then, and in each and every such case, except for any
series of Securities the Principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may, and the Trustee at the request of such Holders shall,
declare the entire principal amount of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
32
(b) If an Event of Default described in clauses (f) or (g) of Section
6.01 with respect to the Company occurs and is continuing, then the principal
amount of all the Securities then outstanding and interest accrued thereon,
if any, shall be and become immediately due and payable, without any notice
or other action by any Holder or the Trustee, to the full extent permitted by
applicable law.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal amount of the Securities of any series (or of
all the Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series
(or of all the Securities, as the case may be) and the Principal of any and
all Securities of each such series (or of all the Securities, as the case may
be) which shall have become due otherwise than by acceleration (with interest
upon such Principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.07, and if
any and all Events of Default under the Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then
and in every such case the Holders of a majority in aggregate principal
amount of all the then outstanding Securities of all such series that have
been accelerated (each such series voting as a separate class), by written
notice to the Company and to the Trustee, may waive all defaults with respect
to such series (or with respect to all the Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
Section 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of Principal of and interest on the Securities of such
series or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding.
Section 6.04. Waiver of past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount of the
outstanding
33
Securities of any series affected (each series voting as a separate class),
by notice to the Trustee, may waive an existing Default or Event of Default
with respect to the Securities of such series and its consequences, except a
Default in the payment of Principal of or interest on any Security as
specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant
or provision of this Indenture which cannot be modified or amended without
the consent of the Holder of each outstanding Security affected. This
Section 6.04 shall be in lieu of Trust Indenture Act Section 316(a)(1)(B),
and such Section 316(a)(1)(B) is hereby expressly excluded from this
Indenture and the Securities, as permitted by the Trust Indenture Act. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series 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 Event of Default or
impair any right consequent thereto.
Section 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(v), the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of each series affected (each series voting as a
separate class) may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series
by this Indenture; provided, that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders of Securities of such
series not joining in the giving of such direction or to the Holders of the
Securities of any other series; and provided further, that the Trustee may
take any other action it deems proper that is not inconsistent with any
directions received from Holders of Securities pursuant to this Section 6.05.
This Section 6.05 shall be in lieu of Trust Indenture Act Section
316(a)(1)(A) and such Section 316(a)(1)(A) is hereby expressly excluded from
this Indenture and the Securities, as permitted by the Trust Indenture Act.
Section 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of such series shall have made written request to
the
34
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such series
have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's
Security on or after the respective due dates expressed on such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of Principal of, and accrued
interest remaining unpaid on, together with interest on overdue Principal of,
and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest on, the Securities of such series, in each
case at the rate specified in such Securities, and such further amount as
shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section 6.09. Trustee May File Proofs of Claim The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and
empowered to collect and receive any moneys, securities or other property
payable or deliverable
35
upon conversion or exchange of the Securities or upon any such claims and to
distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.07. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official.
Section 6.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and
coupons appertaining to such Securities in respect of which moneys have been
collected and noting thereon the payment, or issuing Securities of such
series and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: In case the Principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the
36
Trustee) upon overdue installments of interest at the same rate as
the rate of interest specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such Principal and interest, without preference or
priority 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 of such series over any other Security
of such series, ratably to the aggregate of such Principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
Section 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored to
their former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect
to the Securities of any series, a court may require any party litigant in
such suit (other than the Trustee) to file an undertaking to pay the costs of
the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant (other than the
Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the outstanding Securities of such
series.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders 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
37
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article 6 or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
ARTICLE 7
Trustee
Section 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee 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, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any Officers' Certificate, Opinion of Counsel
(or both), resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
person or persons. The Trustee need not investigate any fact or matter
stated in the document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 10.04. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
38
Whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take 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 to be taken by it under the provisions of
this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request, order or direction;
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in
accordance with the direction of the Holders in accordance with Section
6.05 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and
in reliance thereon; and
39
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, Officers' Certificate, Opinion of
Counsel, Board Resolution, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding.
Section 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section
311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no
40
responsibility for the correctness of the same. Neither the Trustee nor any
of its agents (i) makes any representation as to the validity or adequacy of
this Indenture or the Securities and (ii) shall be accountable for the
Company's use or application of the proceeds from the Securities.
Section 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is
known to the actual knowledge of a Responsible Officer with the corporate
trust department of the Trustee, the Trustee shall give to each Holder of
Securities of such series notice of such Default within 90 days after it
occurs (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper and (ii) to all Holders of Securities of such series in
the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; provided, however, that, except in the
case of a Default in the payment of the Principal of or interest on any
Security, the Trustee shall be protected in withholding such notice if the
Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
Section 7.06. Reports by Trustee to Holders. Within 120 days after the
close of the fiscal year ending December 31, 1997, and within 120 days after
the close of each fiscal year thereafter, the Trustee shall mail to each
Holder as and to the extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of the close of such fiscal year, if required by Trust
Indenture Act Section 313(a).
Section 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited
by any law on compensation of a Trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by it (including the
reasonable compensation and expenses of its agents, counsel and other persons
not regularly in its employ) except to the extent any such expense,
disbursement or advance may arise from its negligence or bad faith.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss, damage, claim or liability or expense including
taxes (other than taxes based on the income of the Trustee) incurred by it
without negligence or bad faith on its part arising out of or in connection
with the acceptance or administration of this Indenture and the Securities or
the issuance of the Securities or a series thereof or the trusts hereunder
and the performance of its duties under this Indenture and the Securities,
including the costs and expenses of defending
41
itself against or investigating any claim or liability and of complying with
any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture
and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
coupons, and the Securities are hereby subordinated to such senior claim. If
the Trustee renders services and incurs expenses following an Event of
Default under Section 6.01(f) or Section 6.01(g) hereof, the parties hereto
and the Holders by their acceptance of the Securities hereby agree that such
expenses are intended to constitute expenses of administration under any
bankruptcy law.
Section 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any
series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series
by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of
any series if: (i) the Trustee is no longer eligible under Section 7.11 of
this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee
with respect
42
to the Securities of any series for any reason, the Company shall promptly
appoint a successor Trustee with respect thereto. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the outstanding Securities of such series may appoint a successor Trustee
in respect of such Securities to replace the successor Trustee appointed by
the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next
succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and
to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.07, (i) the retiring Trustee
shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (iii) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company 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 the preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
Section 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the
43
successor Trustee had been named as the Trustee herein; provided that such
successor Trustee shall be otherwise qualified and eligible under this
Article 7.
Section 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of condition. The
Trustee shall comply with Trust Indenture Act Section 310(b). If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately as Trustee with respect to the Securities of such series in the
manner and with the effect specified in this Article.
Section 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
Discharge of Indenture
Section 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with
respect to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 4.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or
all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient
44
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay Principal of and interest on
the Securities of such series to maturity or redemption, as the case may
be, and to pay all other sums payable by it hereunder, and (C) the
Company delivers to the Trustee an Officers' Certificate and an Opinion
of Counsel, in each case stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's obligations
under Sections 7.07 and 8.05 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in
respect of the Securities of such series shall survive until such Securities
of such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 in respect of the Securities of such
series shall survive. After any such irrevocable deposit, the Trustee shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to the Securities
of such series except for those surviving obligations specified above.
Section 8.02. Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same); provided that the following conditions
shall have been satisfied:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest
on the Securities of such series, money or U.S. Government Obligations
or a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
45
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it
is bound;
(iii) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv) the Company shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of the Company's exercise of its option under this Section
8.02 and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the
UCC; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 of the Securities of such series have
been complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.05 shall survive.
Section 8.03. Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Section 4.03 (or any other
specific covenant relating to the Securities of any series provided for in a
Board Resolution or supplemental indenture pursuant to Section 2.03 which may
by its terms be defeased pursuant to this Section 8.03), and such omission
shall be deemed not to be an Event of Default under clause (c) of Section
6.01, with respect to the outstanding Securities of such series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities
46
of such series, for payment of the Principal of and interest, if any, on
the Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
to pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it
is bound;
(iii) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no
prior liens under the UCC and (B) such Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.03 of the Securities of such
series have been complied with.
Section 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations
in accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; but
such money need not be segregated from other funds except to the extent
required by law. The Company shall pay and
47
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to
Section 8.01, 8.02 or 8.03, as the case may be, or the principal and interest
received in respect thereof, other than any such tax, fee or other charge
that by law is for the account of the Holders.
Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon
shall be relieved from all liability with respect to such money. Subject to
applicable escheat or abandoned property laws, the Trustee and the Paying
Agent shall pay to the Company upon written request any money held by them
and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company once in an Authorized Newspaper or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company, Holders entitled
to such money must look to the Company for payment as general creditors
unless an applicable law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
48
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(6) to provide for uncertificated or Unregistered Securities and
to make all appropriate changes for such purpose;
(7) to make any change that does not materially and adversely
affect the rights of any Holder; or
(8) as provided by or pursuant to a Board Resolution or indenture
supplemental hereto establishing the terms of one or more series of
Securities.
Section 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of all series affected by such amendment (each such series voting
as a separate class), and the Holders of a majority in principal amount of
the outstanding Securities of all series affected thereby (each such series
voting as a separate class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security,
(ii) reduce the Principal thereof or the rate of interest thereon,
or any premium payable with respect thereto,
49
(iii) change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable,
(iv) change the provisions for calculating the optional redemption
price, including the definitions relating thereto;
(v) make any change to Section 6.04 or 6.07 (except to include
other provisions subject to Section 6.04);
(vi) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with any provisions of this Indenture or any Defaults and
their consequences provided for in this Indenture;
(vii) waive a Default in the payment of Principal of or interest
on any Security of such Holder (except pursuant to a rescission of
acceleration pursuant to the second paragraph of Section 6.02(b));
(viii) adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder;
(ix) modify any of the provisions of this Section 9.02, 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 outstanding Security affected thereby; or
(x) change or waive any provision that, pursuant to a Board
Resolution or indenture supplemental hereto establishing the terms of
one or more series of Securities, is prohibited to be so changed or
waived.
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 Holders of Securities of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or of the
coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
50
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company or, at the Company's request, the Trustee shall give
to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company or, at the Company's request, the Trustee
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 9.03. Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which
may be not less than 10 nor more than 60 days prior to the solicitation of
consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver.
If a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be entitled to consent
to such amendment, supplement or waiver, whether or not such Persons continue
to be such Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with respect
to the Securities of any series affected thereby, it shall bind every Holder
of such Securities unless it is of the type described in any of clauses (i)
through (x) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (i) through (x) of Section 9.02, the amendment or
waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Securities that
consent, waive or agree to amend in the time frame
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set forth in the solicitation documents relating to such consent, waiver or
agreement.
Section 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security of the
same series and tenor that reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
Miscellaneous
Section 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 10.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received
or (b) if
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mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
if to the Company:
1500 Market Street
Philadelphia, Pennsylvania 19102-2148
Telecopy: (215) 981-7744
Attention: Treasurer
if to the Trustee:
77 Water Street
4th Floor
New York, New York 10005
Telecopy: (201) 701-7684
Attention: Corporate Trust Department
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee (and in
the case of any notice given by the Company, the Trustee shall make such
information available to the Company for such purpose) and to Holders of
Registered Securities by mailing to such Holders at their addresses as they
shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and
each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed
in the manner provided in this Section 10.02, it is duly given, whether or
not the addressee receives it.
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
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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.
In case it shall be impracticable to give notice as herein contemplated,
then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 10.03. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
Section 10.05. Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
54
Unregistered Security and the Holder of any coupon as the absolute owner of
such Unregistered Security or coupon (whether or not such Unregistered
Security or coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes, and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by any Holder
of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date thereof a
Security bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer
by the person named in such certificate. Any such certificate may be issued
in respect of one or more Unregistered Securities specified therein. The
holding by the person named in any such certificate of any Unregistered
Securities specified therein shall be presumed to continue for a period of
one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced or (2) the
Security specified in such certificate shall be produced by some other
Person, or (3) the Security specified in such certificate shall have ceased
to be outstanding. Subject to Article 7, the fact and date of the execution
of any such instrument and the amount and numbers of Securities held by the
Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or
in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner
of such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
Section 10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 10.07. Payment Date Other Than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day
at
55
any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made
on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in
respect of such payment for the period from and after such date.
Section 10.08. Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
Section 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture. No Board
Resolution or supplemental indenture with respect of the Securities of any
series may be used to interpret any Board Resolution or supplemental
indenture with respect to the Securities of any other series.
Section 10.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 10.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 10.12. Separability. In case any provision in this Indenture or
in the Securities 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 10.13. Table of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
Section 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any
successor, either directly
56
or through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
Section 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for
the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the Principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a Business Day in The City of New York, then, to the extent
permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on
the Business Day in The City of New York preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
COMCAST CABLE COMMUNICATIONS, INC.
/s/ Stanley Wang
----------------------------------
By:
Name: Stanley Wang
Title: Senior Vice President
BANK OF MONTREAL TRUST COMPANY
/s/ Therese Gaballah
------------------------------
By:
Name: Therese Gaballah
Title: Vice Pesident
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