Common use of Amendment and Restatement of Section Clause in Contracts

Amendment and Restatement of Section. 8.01(a), (b) and (c). Article VIII of the Base Indenture (as amended hereby) shall apply to the Notes. For purposes of the Notes only, and not for purposes of any other Securities, Section 8.01(a), (b) and (c) of the Base Indenture is hereby amended and restated in its entirety to read as follows, and as so amended and restated, shall apply to the Notes: “ (a) This Indenture shall cease to be of further effect with respect to the Notes (except that the Company’s obligations under Section 7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such series, when: (1) either: (A) all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation, or (B) all Notes that have not been delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable at their stated maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Company’s name and at the Company’s expense, and, in any case, the Company has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust solely for the benefit of the Holders, Dollars, Government Obligations or a combination thereof, in such amount as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to, but excluding, the date of deposit (in the case of Notes that have become due and payable), the maturity date or the Redemption Date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable by it under this Indenture and the Notes; (3) the Company has delivered irrevocable instructions to the Trustee to apply the deposited cash and/or Government Obligations toward the payment of the Notes at maturity or on the Redemption Date, as the case may be; and (4) the Company has delivered an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.” (b) The Company may, at its option, by Board Resolution, terminate its obligations under Section 4.05 and Section 5.01 of the Base Indenture (“Covenant Defeasance”) with respect to the Notes if: (1) the Company has irrevocably deposited in trust with the Trustee, solely for the benefit of the Holders of the Notes, Dollars, Government Obligations or a combination thereof sufficient (without consideration of any reinvestment of interest) to pay the principal of, premium, if any, and interest on the Notes when due at maturity or redemption, as the case may be; (2) the Company shall have delivered to the Trustee of an Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; (3) with respect to Government Obligations or a combination of cash and Government Obligations, the Company shall have delivered to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited Government Obligations plus any deposited cash without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be; (4) no Default specified in Sections 6.01(4), 6.01(5) and 6.01(6) with respect to the Company shall have occurred and be continuing on the date of such deposit; and (5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case of the Officers’ Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. In such event, the Company shall be released from its obligations under Section 4.05 and Section 5.01 of the Base Indenture, with respect to the Notes, on and after the date that the conditions set forth in the preceding paragraph satisfied, the Notes shall cease to be deemed “outstanding” for the purposes of any direction, waiver, consent, declaration or act of Holders (and any consequences of any thereof) in connection with Section 4.05 and Section 5.01 of the Base Indenture but shall continue to be deemed outstanding for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the Notes, the Company may omit to comply with and shall have no liability in respect of any term, limitation or condition set forth in such Section 4.05 and Section 5.01 of the Base Indenture by reason of reference in any such Section to any other provision herein or in any other document and such omission to comply shall not constitute a Default or Event of Default hereunder, but the remainder of the Indenture and the Notes shall be unaffected thereby. In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Notes, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the Company’s option. Any Covenant Defeasance shall be subject to the Company’s obtaining the prior approval of the Federal Reserve and any additional requirements that the Federal Reserve may impose with respect to defeasance of such Notes. Notwithstanding the foregoing, if, due to a change in law, regulation, or policy subsequent to the Issue Date of the applicable Notes the Federal Reserve does not require that defeasance of instruments be subject to obtaining Federal Reserve Approval in order for the instrument to be accorded Tier 2 capital treatment, then no such approval of the Federal Reserve will be required for such defeasance.” (c) The Company may, by Board Resolution, elect that all of its obligations under the Notes and the Indenture (as it relates to the Notes) be terminated, except to the extent expressly described in the following paragraph, (“Legal Defeasance”), if: (1) the Company has irrevocably deposited in trust with the Trustee, solely for the benefit of the Holders of the Notes, Dollars, Government Obligations or a combination thereof sufficient (without consideration of any reinvestment of interest) to pay the principal of, premium, if any, and interest on the Notes when due at maturity or redemption, as the case may be; (2) the Company shall have delivered to the Trustee of an Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and such Opinion of Counsel must refer to and be based upon a ruling received by the Company from the Internal Revenue Service or published as a revenue ruling or upon a change in applicable U.S. federal income tax law); (3) with respect to Government Obligations or a combination of cash and Government Obligations, the Company shall have delivered to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited Government Obligations plus any deposited cash without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be; (4) no Default specified in Sections 6.01(4), 6.01(5) and 6.01(6) with respect to the Company shall have occurred and be continuing on the date of such deposit; and (5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case of the Officers’ Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. In such event, the Company will be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all of its other obligations under the Notes and this Indenture insofar as the Notes are concerned (and the Trustee, at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely from the trust funds described in this Section 8.01(c), (b) the Company’s obligations with respect to the Notes under Sections 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and 8.04, the Trustee’s and Paying Agent’s obligations in Sections 8.02 and 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Notes are no longer outstanding. Any Legal Defeasance shall be subject to the Company’s obtaining the prior approval of the Federal Reserve and any additional requirements that the Federal Reserve may impose with respect to defeasance of such Notes. Notwithstanding the foregoing, if, due to a change in law, regulation, or policy subsequent to the Issue Date of the Notes the Federal Reserve does not require that defeasance of instruments be subject to obtaining Federal Reserve Approval in order for the instrument to be accorded Tier 2 capital treatment, then no such approval of the Federal Reserve will be required for such defeasance.”

Amendment and Restatement of Section. 8.01(a), (b) and (c)2.8. Article VIII Effective as of the Base Indenture (as amended hereby) shall apply to the Notes. For purposes date of this Amendment, Section 2.8 of the Notes only, and not for purposes of any other Securities, Section 8.01(a), (b) and (c) of the Base Indenture Loan Agreement is hereby amended and restated in its entirety to read as follows, and as so amended and restated, shall apply : "In addition to any other mandatory prepayment or acceleration of the Notes: “Term Loan required by the terms of this Agreement or any Loan Document: (a) This Indenture shall cease to be in the event of further effect with respect a Change of Control on or prior to the Notes (except that the Company’s obligations under Section 7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such series, when: (1) either: (A) all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation, or (B) all Notes that have not been delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable at their stated maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Company’s name and at the Company’s expense, and, in any case, the Company has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust solely for the benefit of the Holders, Dollars, Government Obligations or a combination thereof, in such amount as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to, but excluding, first Business Day following the date of deposit (such Change of Control, Borrower shall prepay the Loans, in full together with accrued interest thereon to the case date of Notes that have become due prepayment, and payable), the maturity date or the Redemption Date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable by it Obligations owing to Lender hereunder or under this Indenture and the Notes; (3) the Company has delivered irrevocable instructions to the Trustee to apply the deposited cash and/or Government Obligations toward the payment of the Notes at maturity or on the Redemption Date, as the case may be; and (4) the Company has delivered an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.”other Loan Documents; (b) The Company mayif Borrower or any of its Subsidiaries sells any of its material assets or other properties (other than in the ordinary course of business), at its optionreceives any property damage insurance award which is not used to repair or replace the property covered thereby, by Board Resolutionor incurs any Indebtedness except for Permitted Indebtedness, terminate its obligations then Borrower shall apply 100% of the proceeds of any such sale (to the extent such proceeds exceed $100,000, and then only to the extent of such excess), award or Indebtedness to the prepayment of the Loans and the Obligations hereunder, provided, however, that the reduction of principal amortization shall be applied first to the last principal payment due under Section 4.05 2.4(a) until such payment is reduced to zero and then to the next preceding principal payment required under Section 5.01 2.4(a) until any such preceding payment or payments is reduced to zero. Once all principal amounts owing under the Term Loan have been fully repaid, any such remaining proceeds shall be applied to the other Obligations as Lender may elect; and (c) In addition, and notwithstanding any other provision of this Agreement or any other Loan Document, commencing with the fiscal year ending December 31, 2003, and for each additional fiscal year of the Base Indenture Term and until such time as all Obligations shall be indefeasibly paid in cash in full and performed, fifty percent (“Covenant Defeasance”50%) with respect of Borrower's Excess Cash Flow for each fiscal year during such period(s) shall be paid by Borrower to Lender and shall be applied by Lender to reduce the outstanding balance of the Term Loan, provided, however, that the -3 reduction of principal amortization shall be applied to the Notes if: (1) the Company has irrevocably deposited in trust with the Trusteereserves that would replace Letters of Credit, solely for the benefit of the Holders of the Notes, Dollars, Government Obligations or a combination thereof sufficient (without consideration of any reinvestment of interest) to pay the principal of, premium, if any, and interest on the Notes when due at maturity or redemption, as the case may be; (2) the Company shall have delivered then applied to the Trustee of an Opinion of Counsel last principal payment due under Section 2.4(a) until such payment is reduced to zero and thereafter applied to the effect that next preceding principal payment required under Section 2.4(a) until any such preceding payment or payments is reduced to zero. Once all principal amounts owing under the Holders of the Notes will not recognize incomeTerm Loan have been fully repaid, gain or loss for U.S. federal income tax purposes any such prepayments as a result of such deposit and defeasance and will Excess Cash Flow shall be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; (3) with respect to Government Obligations or a combination of cash and Government Obligations, the Company shall have delivered applied to the Trustee a certificate from a nationally recognized firm other Obligations as Lender may elect. Such payments shall be made no later than thirty (30) calendar days after preparation of independent accountantsBorrower's audited financial statements, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that but in any event not later than one hundred and forty-five (145) calendar days after the payments of principal and interest when due and without reinvestment on the deposited Government Obligations plus any deposited cash without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be; (4) no Default specified in Sections 6.01(4), 6.01(5) and 6.01(6) with respect to the Company shall have occurred and be continuing on the date of such deposit; and (5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case end of the Officers’ Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. In fiscal year to which such event, the Company shall be released from its obligations under Section 4.05 and Section 5.01 of the Base Indenture, with respect to the Notes, on and after the date that the conditions set forth in the preceding paragraph satisfied, the Notes shall cease to be deemed “outstanding” for the purposes of any direction, waiver, consent, declaration or act of Holders (and any consequences of any thereof) in connection with Section 4.05 and Section 5.01 of the Base Indenture but shall continue to be deemed outstanding for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the Notes, the Company may omit to comply with and shall have no liability in respect of any term, limitation or condition set forth in such Section 4.05 and Section 5.01 of the Base Indenture by reason of reference in any such Section to any other provision herein or in any other document and such omission to comply shall not constitute a Default or Event of Default hereunder, but the remainder of the Indenture and the Notes shall be unaffected thereby. In order to have money available on a payment date to pay principal of or premium (if any) or interest on the Notes, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. Government Obligations shall not be callable at the Company’s option. Any Covenant Defeasance shall be subject to the Company’s obtaining the prior approval of the Federal Reserve and any additional requirements that the Federal Reserve may impose with respect to defeasance of such Notes. Notwithstanding the foregoing, if, due to a change in law, regulation, or policy subsequent to the Issue Date of the applicable Notes the Federal Reserve does not require that defeasance of instruments be subject to obtaining Federal Reserve Approval in order for the instrument to be accorded Tier 2 capital treatment, then no such approval of the Federal Reserve will be required for such defeasanceExcess Cash Flow relates.” (c) The Company may, by Board Resolution, elect that all of its obligations under the Notes and the Indenture (as it relates to the Notes) be terminated, except to the extent expressly described in the following paragraph, (“Legal Defeasance”), if: (1) the Company has irrevocably deposited in trust with the Trustee, solely for the benefit of the Holders of the Notes, Dollars, Government Obligations or a combination thereof sufficient (without consideration of any reinvestment of interest) to pay the principal of, premium, if any, and interest on the Notes when due at maturity or redemption, as the case may be; (2) the Company shall have delivered to the Trustee of an Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and such Opinion of Counsel must refer to and be based upon a ruling received by the Company from the Internal Revenue Service or published as a revenue ruling or upon a change in applicable U.S. federal income tax law); (3) with respect to Government Obligations or a combination of cash and Government Obligations, the Company shall have delivered to the Trustee a certificate from a nationally recognized firm of independent accountants, a nationally recognized investment bank or a nationally recognized appraisal or valuation firm, expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited Government Obligations plus any deposited cash without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be; (4) no Default specified in Sections 6.01(4), 6.01(5) and 6.01(6) with respect to the Company shall have occurred and be continuing on the date of such deposit; and (5) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case of the Officers’ Certificate, clauses (1) through (4) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) of this paragraph, have been complied with. In such event, the Company will be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all of its other obligations under the Notes and this Indenture insofar as the Notes are concerned (and the Trustee, at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely from the trust funds described in this Section 8.01(c), (b) the Company’s obligations with respect to the Notes under Sections 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and 8.04, the Trustee’s and Paying Agent’s obligations in Sections 8.02 and 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until all Notes are no longer outstanding. Any Legal Defeasance shall be subject to the Company’s obtaining the prior approval of the Federal Reserve and any additional requirements that the Federal Reserve may impose with respect to defeasance of such Notes. Notwithstanding the foregoing, if, due to a change in law, regulation, or policy subsequent to the Issue Date of the Notes the Federal Reserve does not require that defeasance of instruments be subject to obtaining Federal Reserve Approval in order for the instrument to be accorded Tier 2 capital treatment, then no such approval of the Federal Reserve will be required for such defeasance.”"