Exhibit 4.14
Nextel Communications, Inc.
and
__________________________,
as Trustee
----------------
Subordinated Debt Securities Indenture
Dated as of _______________ __, 200_
Nextel Communications, Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of __________ ___, 200_
Trust Indenture Indenture
Act Section Section
----------------------- -----------------------
Section 310(a)(1) ...................................................609
(a)(2) ...................................................609
(a)(3) ...................................................Not Applicable
(a)(4) ...................................................Not Applicable
(a)(5) ...................................................609
(b) ...................................................608, 610
(c) ...................................................Not Applicable
Section 311(a) ...................................................613
(b) ...................................................613
(c) ...................................................Not Applicable
Section 312(a) ...................................................701, 702
(b) ...................................................702(b)
(c) ...................................................702(c)
Section 313(a) ...................................................703
(b) ...................................................703
(c) ...................................................703
(d) ...................................................703(b)
Section 314(a)(1)-(3) ...................................................704
(a)(4) ...................................................1005
(b) ...................................................Not Applicable
(c)(1) ...................................................102, 401, 1304
(c)(2) ...................................................102, 401, 1304
(c)(3) ...................................................Not Applicable
(d) ...................................................Not Applicable
(e) ...................................................102
(f) ...................................................Not Applicable
Section 315(a) ...................................................601, 603
(b) ...................................................602
(c) ...................................................601
(d) ...................................................601
(e) ...................................................514
Section 316(a)(1)(A) ...................................................512
(a)(1)(B) ...................................................513
(a)(2) ...................................................Not Applicable
(b) ...................................................508
(c) ...................................................104
Section 317(a)(1) ...................................................503
(a)(2) ...................................................504
(b) ...................................................1003
Section 318(a) ...................................................107
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................................................1
SECTION 102. Compliance Certificates and Opinions.......................................................13
SECTION 103. Form of Documents Delivered to Trustee.....................................................13
SECTION 104. Acts of Holders; Record Dates..............................................................14
SECTION 105. Notices, Etc., to Trustee and Company......................................................16
SECTION 106. Notice to Holders; Waiver..................................................................16
SECTION 107. Conflict with Trust Indenture Act..........................................................17
SECTION 108. Effect of Headings and Table of Contents...................................................17
SECTION 109. Successors.................................................................................17
SECTION 110. Separability Clause........................................................................17
SECTION 111. Benefits of Indenture......................................................................17
SECTION 112. Governing Law..............................................................................17
SECTION 113. Legal Holidays.............................................................................17
SECTION 114. No Recourse Against Others.................................................................18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................................................18
SECTION 202. Form of Face of Security...................................................................19
SECTION 203. Form of Reverse of Security................................................................21
SECTION 204. Securities in Global Form..................................................................25
SECTION 205. Form of Trustee's Certificate of Authentication............................................25
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount of Securities Issuable Unlimited; Issuable in Series................................26
SECTION 302. Denominations..............................................................................29
SECTION 303. Execution, Authentication, Delivery and Dating.............................................29
SECTION 304. Temporary Securities.......................................................................31
SECTION 305. Registration, Registration of Transfer and Exchange........................................31
SECTION 306. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Stolen Securities...........................................34
SECTION 307. Payment of Interest; Interest Rights Preserved.............................................35
SECTION 308. Persons Deemed Owners......................................................................36
SECTION 309. Cancellation...............................................................................36
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SECTION 310. Computation of Interest....................................................................36
SECTION 311. CUSIP Numbers..............................................................................37
SECTION 312. Extension of Interest Payment..............................................................37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................................................37
SECTION 402. Application of Trust Money.................................................................38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..........................................................................38
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........................................40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................41
SECTION 504. Trustee May File Proofs of Claim...........................................................41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities................................42
SECTION 506. Application of Money Collected.............................................................42
SECTION 507. Limitation on Suits........................................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..................43
SECTION 509. Restoration of Rights and Remedies.........................................................43
SECTION 510. Rights and Remedies Cumulative.............................................................44
SECTION 511. Delay or Omission Not Waiver...............................................................44
SECTION 512. Control by Holders.........................................................................44
SECTION 513. Waiver of Past Defaults....................................................................44
SECTION 514. Undertaking for Costs......................................................................45
SECTION 515. Waiver of Stay or Extension Laws...........................................................45
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................................................45
SECTION 602. Notice of Defaults.........................................................................45
SECTION 603. Certain Rights of Trustee..................................................................46
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.............................47
SECTION 605. Trustee May Hold Securities................................................................47
SECTION 606. Money Held in Trust........................................................................47
SECTION 607. Compensation and Reimbursement.............................................................47
SECTION 608. Conflicting Interests......................................................................48
SECTION 609. Corporate Trustee Required; Eligibility....................................................48
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(continued)
PAGE
SECTION 610. Resignation and Removal; Appointment of Successor..........................................49
SECTION 611. Acceptance of Appointment by Successor.....................................................50
SECTION 612. Merger, Conversion, Consolidation or Succession to Business................................51
SECTION 613. Preferential Collection of Claims Against Company..........................................51
SECTION 614. Appointment of Authenticating Agent........................................................51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..................................53
SECTION 702. Preservation of Information; Communications to Holders.....................................53
SECTION 703. Reports by Trustee.........................................................................54
SECTION 704. Reports by Company.........................................................................54
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms........................................54
SECTION 802. Successor Corporation to be Substituted....................................................55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.........................................56
SECTION 902. Supplemental Indentures with Consent of Holders............................................57
SECTION 903. Execution of Supplemental Indentures.......................................................58
SECTION 904. Effect of Supplemental Indentures..........................................................58
SECTION 905. Conformity with Trust Indenture Act........................................................58
SECTION 906. Reference in Securities to Supplemental Indentures.........................................59
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................................................59
SECTION 1002. Maintenance of Office or Agency............................................................59
SECTION 1003. Money for Security Payments to be Held in Trust............................................60
SECTION 1004. Statement by Officers as to Default........................................................61
SECTION 1005. Waiver of Certain Covenants................................................................61
iii
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(continued)
PAGE
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...................................................................62
SECTION 1102. Election to Redeem; Notice to Trustee......................................................62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..........................................62
SECTION 1104. Notice of Redemption.......................................................................63
SECTION 1105. Deposit of Redemption Price................................................................64
SECTION 1106. Securities Payable on Redemption Date......................................................64
SECTION 1107. Securities Redeemed in Part................................................................64
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...................................................................65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......................................65
SECTION 1203. Redemption of Securities for Sinking Fund..................................................65
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance.....66
SECTION 1302. Defeasance and Discharge...................................................................66
SECTION 1303. Covenant Defeasance........................................................................66
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............................................67
SECTION 1305. Deposited Money, U.S. Government Obligations and Foreign Government
Obligations to Be Held in Trust; Miscellaneous Provisions..................................69
SECTION 1306. Reinstatement..............................................................................70
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Agreement to Subordinate...................................................................70
SECTION 1402. Default on Senior Indebtedness.............................................................71
SECTION 1403. Liquidation; Dissolution; Bankruptcy.......................................................72
SECTION 1404. Subrogation................................................................................73
SECTION 1405. Trustee to Effectuate Subordination........................................................74
SECTION 1406. Notice by the Company......................................................................74
SECTION 1407. Rights of the Trustee; Holders of Senior Indebtedness......................................75
SECTION 1408. Subordination May Not be Impaired..........................................................75
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(continued)
PAGE
SECTION 1409. Article Applicable to Paying Agents........................................................76
SECTION 1410. Defeasance of this Article Fourteen........................................................76
SECTION 1411. Subordination Language to be Included In Securities........................................76
v
INDENTURE, dated as of __________ ___, 200_, between Nextel
Communications, Inc., a Delaware corporation (herein called the "Company"),
having its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 20191
and ____________________, a __________ trust company, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of each
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture (including, with respect to
any particular series of Securities, the terms of that particular series
established as contemplated by Section 301), except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the
meanings assigned to them in this Article One and include the plural as
well as the singular;
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles (whether or not such is indicated
herein), and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(3) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or Section, as the
case may be, of this Indenture;
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) each reference herein to a rule or form of the
Commission shall mean such rule or form and any rule or form successor
thereto, in each case, as amended from time to time.
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 Trust Indenture Act terms used in this Indenture
have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Securities means the Company and any
successor obligor under the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by the Trust Indenture Act in reference to another
statute or defined by Commission rule under the Trust Indenture Act, have the
meanings so assigned to them.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"AFFILIATE" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. No individual shall be deemed to be controlled by
or under common control with any specified Person solely by virtue of his or her
status as an employee or officer of such specified Person or of any other Person
controlled by or under common control with such specified Person.
"AUTHENTICATING AGENT" means any Person authorized by the
Trustee pursuant to Section 614 hereof to act on behalf of the Trustee to
authenticate Securities.
"BOARD OF DIRECTORS" means the board of directors of the
Company or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
2
"BUSINESS DAY" when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations to pay rent or other amounts under lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which are required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person determined in
accordance with generally accepted accounting principles and the amount of such
obligations shall be the capitalized amount thereof in accordance with generally
accepted accounting principles and the stated maturity thereof shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"CAPITAL STOCK" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of stock of,
or other ownership interests in, such Person.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which address, as of the date of execution and delivery of this
Indenture, is located at _______________________.
"CORPORATION" means a corporation, association, company,
joint-stock company, limited liability company, or business trust.
"COVENANT DEFEASANCE" has the meaning specified in Section
1303.
"CURRENCY AGREEMENT" means, with respect to any Person, any
foreign currency protection agreement, any foreign exchange contract, forward
contracts, currency swap agreement, currency option agreement or other similar
agreement or arrangement to which such Person is a party or by which such Person
is a party or by which it is bound.
3
"DEBT", except as otherwise specified as contemplated by
Section 301, means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(v) every Capital Lease Obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of Redeemable Stock of such Person at the time of
determination plus accrued but unpaid dividends, (vii) to the extent not
otherwise included in this definition, obligations under Currency Agreements and
Interest Rate Agreements (other than Currency Agreements and Interest Rate
Agreements designed solely to protect the Company or its Restricted Subsidiaries
against fluctuations in foreign currency exchange rates or interest rates and
that do not increase the Debt of the obligor outstanding at any time other than
as a result of fluctuations in foreign currency exchange rates or interest rates
or by reason of fees, indemnities and compensation payable thereunder) and
(viii) every obligation of the type referred to in clauses (i) through (vii) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise. The amount of Debt of any Person
as of any determination date shall be the outstanding balance on such date in
the case of unconditional obligations and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligations; provided, that
(A) the amount outstanding at any time of any Debt issued
at a price less than its principal or face amount at
maturity shall be the amount of the liability in
respect thereof determined in accordance with
generally accepted accounting principles;
(B) the amount of Debt represented by Redeemable Stock of
any Person shall be the maximum amount that such
Person can be required to pay to redeem, repay or
repurchase such Redeemable Stock (excluding any
accrued dividends) as of the determination date, and
if such price is based upon, or measured by, the fair
market value of such Redeemable Stock, such fair
market value will be determined in good faith by the
Board of Directors of the issuer of such Redeemable
Stock;
(C) the amount of Debt represented by obligations under
any Currency Agreement or Interest Rate Agreement
shall be the termination value of such agreement that
would be payable by such Person if it was terminated
as of the date of determination; and
(D) money borrowed and set aside at the time of the
incurrence of any Debt in order to refund the payment
of the interest on such Debt shall not be deemed to
be "Debt".
Notwithstanding the foregoing, Debt shall not include:
4
(i) trade payables and accrued liabilities arising in the
ordinary course of business;
(ii) any liability for Federal, state, local or other
taxes;
(iii) performance, surety or appeal bonds or other similar
agreements or arrangements provided consistent with
industry practice or in the ordinary course of
business; or
(iv) indemnification, adjustment of purchase price or
similar obligations under, or guarantees or letters
of credit, surety bonds, appeal bonds, performance
bonds or other similar agreements or arrangements
securing any obligations of the Company or any of its
Subsidiaries pursuant to, agreements relating to the
acquisition or disposition of any business, assets or
Restricted Subsidiary (other than Guarantees of Debt
incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition).
"DEFAULT" means an event that is, or after notice or passage
of time, or both, would be, an Event of Default with respect to Securities of
any particular series.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DEFEASIBLE COVENANT" has the meaning specified in Section
1303.
"DEPOSITARY" shall mean, with respect to Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person specified in Section 301 as the Depositary with respect
to the Securities, and any and all successors thereto appointed as depositary
hereunder and having become such pursuant to the applicable provision of this
Indenture.
"DESIGNATED SENIOR INDEBTEDNESS" means:
(i) all Senior Indebtedness under the Senior Credit
Agreement; and
(ii) any other Senior Indebtedness which, at the time of
determination and at all times thereafter, has an aggregate principal
amount outstanding of at least $50,000,000 and which has been
specifically designated in the instrument evidencing such Senior
Indebtedness as "Designated Senior Indebtedness" and as to which the
Trustee has been given written notice of such designation.
"DOLLARS", "DOLLARS", "U.S.$", "U.S. DOLLARS" or "$" shall
mean lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
5
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case, as amended from time to time.
"EXTENSION PERIOD" has the meaning specified in Section 301.
"FOREIGN GOVERNMENT OBLIGATION" has the meaning specified in
Section 1304.
"GLOBAL SECURITY" or "GLOBAL SECURITIES" has the meaning
provided in Section 204.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"HOLDER" means a Person in whose name a Security is registered
in the Security Register.
"INCUR" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume (pursuant to a merger, consolidation, acquisition or other transaction),
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence" and "Incurred", shall have meanings
correlative to the foregoing); provided, however, that a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt; provided, further, however, that the accretion of original issue discount
on Debt shall not be deemed to be an Incurrence of Debt. Debt otherwise Incurred
by a Person before it becomes a Restricted Subsidiary of the Company shall be
deemed to have been Incurred at the time it becomes such a Restricted
Subsidiary.
"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. With respect to any particular series of Securities, the term
"Indenture" shall also include the terms of that particular series of Securities
established as contemplated by Section 301.
6
"INTEREST", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate protection agreement, interest rate futures agreement,
interest rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate floor agreement,
interest rate hedge agreement, option or futures contract or other similar
agreement or arrangement to which such Person is a party or by which it is
bound.
"MATURITY", when used with respect to any Security, means the
date on which the principal or an installment of principal of such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, offer to
purchase or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind
specified in Section 501(4).
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to
7
this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected
pursuant to Section 1302;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder, (A) the principal amount of
an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon acceleration
of the Maturity thereof pursuant to Section 502, (B) the principal
amount of a Security denominated in one or more foreign currencies or
currency units shall be that number of Dollars into which the principal
amount of such Security may be converted, determined in the manner
provided as contemplated by Section 301, on the date of original
issuance of such Security and (C) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor 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, waiver or other action, only Securities
which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
"PAYING AGENT" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"PAYMENT BLOCKAGE NOTICE" has the meaning specified in Section
1402.
"PAYMENT BLOCKAGE PERIOD" has the meaning specified in Section
1402.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same Debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same Debt as the mutilated, destroyed, lost or stolen Security.
8
"PREFERRED CAPITAL STOCK", as applied to the Capital Stock of
any Person, means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"RECORD EXPIRATION DATE" has the meaning specified in Section
104.
"REDEEMABLE STOCK" means, with respect to any Person, and with
respect to the Securities of any series, any Capital Stock of such Person that
by its terms or otherwise is (i) required to be redeemed prior to the Stated
Maturity of the Securities of such series, (ii) redeemable at the option of the
holder thereof at any time prior to the Stated Maturity of the Securities of
such series or (iii) convertible into or exchangeable for Capital Stock referred
to in clause (i) or (ii) above or Debt having a scheduled maturity prior to the
Stated Maturity of the Securities of such series; provided, that any Capital
Stock that would not constitute Redeemable Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of a "change of control" occurring prior
to the Stated Maturity of the Securities of such series shall not constitute
Redeemable Stock if the "change of control" provisions applicable to such
Capital Stock are no more favorable to the holders of such Capital Stock than
the analogous provisions, if any, which apply to the Securities of such series
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such Capital Stock pursuant to such provision prior to
the Company's repurchase of the Securities of such series as are required to be
repurchased pursuant to the analogous provisions which apply to the Securities
of such series; and provided, further, that the Series D Preferred Stock, the
Series E Preferred Stock and the Zero Coupon Preferred Stock shall not be
considered to constitute Redeemable Stock.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer in the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
9
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933 and any
statute successor thereto, in each case, as amended from time to time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR CREDIT AGREEMENT" shall mean the credit agreement
dated ____________ among the Company, the lenders party thereto, ____________ as
administrative agent and ____________ as collateral agent, together with the
documents related thereto (including without limitation any guarantee agreements
and security documents), in each case as such agreements may be amended
(including any amendment and restatement thereof), renewed, substituted,
supplemented or otherwise modified from time to time, including any agreement
extending the maturity, refinancing, replacing, supplementing, modifying or
otherwise restructuring (including increasing the available amount of borrowings
thereunder or adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Debt under such agreements or
any successor or replacement agreements and whether by the same or any other
agent, lender or group of lenders.
"SENIOR INDEBTEDNESS" of the Company shall mean, with respect
to the Securities of any series (except as otherwise specified as contemplated
by Section 301):
(i) all obligations of such Person, now or hereafter
existing, under or in respect of the Senior Credit Agreement, whether
for principal, premium, if any, interest and other amounts due in
connection therewith (including any fees, premiums, expenses and
indemnities); and
(ii) the principal of, premium, if any, and interest on
all other Debt of such Person, unless, in the case of any particular
Debt, the instrument creating or evidencing the same or pursuant to
which the same is outstanding provides that such Debt shall not be
senior or shall be subordinated in right of payment to the Securities
of such series.
Notwithstanding the foregoing, "Senior Indebtedness" shall not
include:
(i) Debt evidenced by the Securities;
(ii) Debt of such Person that is subordinated in right of
payment to any other Debt of such Person;
(iii) Debt of such Person that by operation of law is
subordinate to any general unsecured obligations of such Person;
(iv) Debt of such Person to the extent incurred in
violation of any covenant applicable to the Securities of such series;
(v) any liability for Federal, state or local taxes or
other taxes, owed or owing by such Person;
10
(vi) accounts payable or other liabilities owed or owing
by such Person to trade creditors (including guarantees thereof or
instruments evidencing such liabilities);
(vii) amounts owed by such Person for compensation to
employees or for services rendered to such Person or its Subsidiaries;
(viii) Debt of such Person to any Subsidiary or any other
Affiliate of such Person;
(ix) Capital Stock of such Person; and
(x) Debt which when incurred and without respect to any
election under Section 1111(b) of Title 11 of the United States Code is
without recourse to the Company or any Restricted Subsidiary.
"SERIES D PREFERRED STOCK" means the 13% Series D Exchangeable
Redeemable Preferred Stock of the Company issued on July 21, 1997 and any shares
of Preferred Capital Stock issued in exchange therefor or as payment in kind
dividends thereon.
"SERIES E PREFERRED STOCK" means the 11.125% Series E
Exchangeable Redeemable Preferred Stock of the Company issued on February 11,
1998 and any shares of Preferred Capital Stock issued in exchange therefor or as
payment in kind dividends thereon.
"SIGNIFICANT SUBSIDIARY" means, as of any date of
determination, a Subsidiary of the Company (i) that conducts digital mobile
business operations or holds assets relating to digital mobile business
operations, in each case, primarily in the United States, and (ii) either (A) in
which the investments in, and advances to, such Subsidiary by the Company are at
least equal to 10% of the total book value of the assets of the Company and its
consolidated Subsidiaries, or (B) has assets with a book value that is at least
equal to 10% of the total book value of the assets of the Company and its
consolidated Subsidiaries (excluding, in each case, any Subsidiary that would
not be classified as a "Significant Subsidiary" because it does not meet the
requirements of clause (i) or (iii) of this definition), and (iii) that is
classified as a "Restricted Subsidiary" for purposes of any indenture to which
the Company is a party or by which the Company is bound.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable, and,
when used with respect to any other Debt or installment of principal thereof or
interest thereon, means the date specified in the instrument governing such Debt
as the fixed date on which the principal of such Debt or any installment of
interest thereon is due and payable.
"SUBSIDIARY" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other
11
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.
"SURVIVING ENTITY" has the meaning specified in Section 801.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"UNRESTRICTED SUBSIDIARY" means, except as otherwise specified
as contemplated by Section 301, (a) any Subsidiary that at the time of
determination shall be an Unrestricted Subsidiary (as designated by the Board of
Directors, as provided below) and (b) any Subsidiary of any Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither the Company nor any Restricted Subsidiary is directly or
indirectly liable for any Debt of such Subsidiary, (ii) no default with respect
to any Debt of such Subsidiary would permit (upon notice, lapse of time or
otherwise) any holder of any other Debt of the Company or any Restricted
Subsidiary, except any nonrecourse guarantee given solely to support the pledge
by the Company or a Restricted Subsidiary of the Capital Stock of an
Unrestricted Subsidiary, to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity and
(iii) any such designation by the Board of Directors shall be evidenced to the
Trustee by filing a Board Resolution with the Trustee giving effect to such
designation. The Board of Directors may designate any Unrestricted Subsidiary as
a Restricted Subsidiary if immediately after giving effect to such designation,
there would be no Default or Event of Default under this Indenture.
"U.S. GOVERNMENT OBLIGATION" has the meaning specified in
Section 1304.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president", but shall not
include any assistant vice president.
"VOTING STOCK" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"ZERO COUPON PREFERRED STOCK" means the Zero Coupon
Convertible Preferred Stock due 2013 of the Company issued on December 23, 1998.
12
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
13
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders of Securities of such series; provided, that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If not set
by the Company prior to the first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
14
proxies) shall be entitled to give or take, or vote on, the relevant action. If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided, that no such action shall be
effective hereunder unless taken on or prior to the applicable Record Expiration
Date by Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and without any action by any
Person be canceled and of no effect), nor shall anything in this paragraph be
construed to render ineffective any action taken by Holders of the requisite
principal amount of any Outstanding Securities of the relevant series on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice of such
record date, the matter(s) to be submitted for potential action by Holders and
the applicable Record Expiration Date to be given to the Trustee in writing and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case, with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, that no such
action shall be effective hereunder unless taken on or prior to the applicable
Record Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
without any action by any Person be canceled and of no effect), nor shall
anything in this paragraph be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the matter(s) to be submitted for potential
action by Holders and the applicable Record Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
With respect to any record date set pursuant to this Section
104, the party hereto that sets such record date may designate any day as the
"Record Expiration Date" and from time to time may change the Record Expiration
Date to any earlier or later day; provided, that no such change shall be
effective unless notice of the proposed new Record Expiration Date is given to
the other party hereto in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or before the existing Record Expiration
Date. If a Record Expiration Date is not designated with respect to any record
date set pursuant to this Section 104, the party hereto that set such record
date shall be deemed to have initially designated the 180th day after such
record date as the Record Expiration Date with respect thereto, subject to its
right to change the
15
Record Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Record Expiration Date shall be later than the 180th day after the
applicable record date.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such principal
amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing and mailed, first-class postage prepaid, to or with
the Trustee at its Corporate Trust Office, Attention: _______________,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, or dispatched for delivery (prepaid by the sender) by an
overnight courier service with written evidence of delivery required,
to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument, marked "Attention:
_______________," or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled to receive such notice, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier than
the earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with
16
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 by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern this Indenture, the latter provision shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors.
All covenants and agreements in this Indenture by the Company
shall bind its successors.
SECTION 110. Separability Clause.
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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then
17
(notwithstanding any other provision of this Indenture or of the Securities,
other than a provision of the Securities of any series which specifically states
that such provision shall apply in lieu of this Section 113) payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect (including with respect to the accrual of interest) as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity;
provided, that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, or interest on any of the Securities, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company contained in this Indenture, or in any of
the Securities, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator or against any past, present or
future partner, shareholder, other equity holder, officer, director, employee or
controlling person, as such, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability, either at common law or in equity or by constitution or statute, is
hereby waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article Two, or in such other form as shall be
established by or pursuant to a Board Resolution 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 such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistent herewith, be
determined by the officer or officers of the Company executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth at Section 205.
18
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officer or officers of the Company executing such Securities, as evidenced
by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
NEXTEL COMMUNICATIONS, INC.
-----------------------
CUSIP No. $_________
NEXTEL COMMUNICATIONS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of _________
[Dollars] [if other than Dollars, substitute other currency units] on ________,
_____ [if the Security is to bear interest prior to Maturity, insert -- , and to
pay interest thereon from _______________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for],
[semiannually] [if other than semi-annual interest at a fixed rate, insert
frequency of payment and payment dates] on _______ and _______ in each year,
commencing ___________, at [if the Security is to bear interest at a fixed rate,
insert -- the rate of __% per annum], [if the Security is to bear interest at a
rate determined with reference to one or more formula, refer to description
index below] until the principal hereof is paid or made available for payment]
[if applicable, insert -- , and (to the extent that the payment of such interest
shall be legally enforceable) at [if the Security is to bear interest at a fixed
rate, insert -- the rate of % per annum on any overdue principal and premium and
on any overdue installment of interest from the dates such amounts are due until
they are paid or made available for payment]. Interest shall be computed on the
basis of [a 360-day year of twelve 30-day months] [if another basis of
calculating interest is to be different, insert a description of such method.]
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _________ or __________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any
19
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Securities are securities with respect to which the
principal of or any premium or interest on, may be determined with reference to
one or more indices or formulas, insert the text of such indices or formulas.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ______% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for.
Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ___________ in
such coin or currency of [the United States of America] [insert other currency
or currency unit, if applicable] as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert -- ; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
NEXTEL COMMUNICATIONS, INC.
[Seal]
By:
------------------------------
Title:
Attest:
------------------------------
20
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of __________, 200_ (herein called
the "Indenture"), between the Company and __________, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert -- limited in aggregate principal amount
to $_______]. The Securities are unsecured general obligations of the Company.
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on _________ in any year commencing with the year
_____ and ending with the year _____ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [if applicable, insert -- on or after _________, 20__], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): if redeemed [if
applicable insert -- on or before ________, ___%, and if redeemed] during the
12-month period beginning of the ________ years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
________ in any year commencing with the year _____ and ending with the year
_____ through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -- on or after ____________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ___________ of the years indicated,
21
Redemption Price for
Redemption Price for Redemption Otherwise Than
Redemption Through Operation Through Operation of the
Year of the Sinking Fund Year Sinking Fund
---- ------------------- ---- ------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to ________ redeem any Securities of this series as
contemplated by [if applicable, insert -- clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ____% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ________ in each year beginning with the year
____ and ending with the year _____ of [if applicable, insert -- not less than
$_____________ ("mandatory sinking fund") and not more than] $_______________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [if applicable, insert
-- mandatory] sinking fund payments otherwise required to be made [if
applicable, insert -- in the inverse order in which they become due].]
[If applicable, insert -- The Securities are subject to
redemption, as a whole at any time or in part from time to time, at the sole
election of the Company, upon not less than 30 or more than 60 days notice by
mail to the Trustee at a Redemption Price equal to _________.]
[If applicable, insert -- The holder of this Security shall
have the right to require the Company to pay this Security in full on
____________, __ by giving the Company or the Registrar written notice of the
exercise of such right not less than 30 or more than 60 days prior to such
date.]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
22
[If applicable, insert -- This Security is not subject to
redemption prior to Maturity.]
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of [(a)] (the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants and Events of Default with
respect to this Security,] [in each case,] upon compliance by the Company with
certain conditions set forth in the Indenture, which provisions apply to this
Security.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.] [If applicable, insert -- "Event of Default" means any one of the
events specified at clauses ________ and _______ of Section 501 of the
Indenture.]
[If the Security is convertible into other securities of the
Company, specify the conversion features.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [-- insert formula for determining
the amount]. Upon payment [if applicable, insert -- (i)] of the amount of
principal so declared due and payable [if applicable, insert -- and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable)], all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of all series to be affected (voting as a
single class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past Defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of
23
the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
[If applicable, insert -- As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
[If applicable, insert -- The Securities of this series are
issuable only in registered form without coupons in denominations of
$_______________ and any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested by
the Holder surrendering the same.]
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse for the payment of the principal of (and premium,
if any) or interest, if any, on this Security, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or in any indenture
supplemental thereto, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or
against any past, present or future partner, shareholder, other equity holder,
officer, director, employee or
24
controlling person, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, either at common law or
in equity or by constitution or statute, being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 204. Securities in Global Form.
If any Security of a series is issuable in global form (the
"Global Security"), such Global Security may provide that it shall represent the
aggregate amount of Securities of that series then Outstanding from time to time
endorsed thereon and may also provide that the aggregate amount of Securities of
that series then Outstanding represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be
specified in such Global Security. Any instructions by the Company with respect
to a Global Security, after its initial issuance, shall be in writing but need
not comply with Section 102.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 205. Form of Trustee's Certificate of Authentication.
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------,
as Trustee
By:
-----------------------
Authorized Signatory
25
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount of Securities Issuable Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered on original issuance under this Indenture is
unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series any or all of the following, as applicable:
(1) the title and series designation of the Securities of
the series (which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit on the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906 or
1107 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the price or prices at which the Securities of the
series will be issued;
(4) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(5) the date or dates on which the principal of the
Securities of the series and premium, if any, are payable;
(6) the rate or rates (which may be fixed or variable)
and/or the method of determination thereof at which the Securities of
the series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable, subject to the right (if any such right
is provided pursuant to this Section 301) of the Company to defer or
extend an Interest Payment Date and the duration of such deferral or
extension (an "Extension Period"), and the Regular Record Date for any
interest payable on any Interest Payment Date;
(7) the place or places where the principal of and any
premium and interest on Securities of the series shall be payable;
26
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) whether the Securities of the series will be secured
and any provisions relating to the security provided;
(11) any provision for the conversion or exchange of the
Securities of the series, either at the option of the Holder thereof or
the Company, into or for another security or securities of the Company,
the security or securities into or for which, the period or periods
within which, the price or prices, including any adjustments thereto,
at which and the other terms and conditions upon which any Securities
of the series shall be converted or exchanged, in whole or in part;
(12) if other than denominations of $l,000 and any
integral multiple thereof, the denominations in which Securities of the
series shall be issuable;
(13) if the currency, currencies or currency units in
which payment of the principal of and any premium and interest on any
Securities of the series shall be other than the currency of the United
States of America, such currency, currencies or currency units and the
manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of
"Outstanding" in Section 101;
(14) any term applicable to Original Issue Discount, if
any (as that term is defined in the Internal Revenue Code of 1986 and
the Regulations thereunder), including the rate or rates at which such
Original Issue Discount, if any, shall accrue;
(15) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined
by reference to one or more indices or a formula, the manner in which
such amounts shall be determined;
(16) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, the periods
within which and the term and conditions upon which such election is to
be made and, if applicable, the manner in which such amount shall be
determined;
27
(17) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(18) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the
principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
outstanding as of any date prior to the Stated Maturity or Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(19) the application, if any, of either or both of Section
1302 and Section 1303 to the Securities of the series;
(20) whether the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the form of any legend or legends which
shall be borne by any such Global Security or Global Securities in
addition to or in lieu of the legend set forth in Section 305, the
Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section
305 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a
Person other than the Depositary for such Global Security or a nominee
thereof and in which any such transfer may be registered;
(21) if other than as specified in Section 501, the Events
of Default applicable with respect to the Securities of the series;
(22) if other than as specified in Section 502, the Events
of Default the occurrence of which would permit the declaration of the
acceleration of Maturity pursuant to Section 502;
(23) whether the Securities of the series shall be
issuable in whole or in part in registered form, bearer form or both,
and any other terms required for the establishment of Securities of a
series in bearer form, including, but not limited to, tax compliance
procedures;
(24) any special United States Federal income tax
considerations applicable to the Securities of the series;
(25) any addition to or change in the covenants set forth
in Article Ten which applies to Securities of the series, and any other
covenant or warranty included for the benefit of Securities of the
series in addition to (and not inconsistent with) those included in
this Indenture for the benefit of Securities of all series, or any
other covenant or warranty included for the benefit of Securities of
the series in lieu of any covenant or warranty included in this
Indenture for the benefit of Securities of all series, or any provision
that any covenant or warranty included in this Indenture for the
benefit of
28
Securities of all series shall not be for the benefit of Securities of
such series, or any combination of such covenants, warranties or
provisions;
(26) if applicable, that the subordination provisions of
Article Fourteen shall apply to Securities of the series or that any
different subordination provisions (including a different definition of
the term "Senior Indebtedness") shall apply to Securities of the
series; and
(27) any other term of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
Unless otherwise provided with respect to the Securities of
any series, the Company, at its option, may pay the interest on the Securities
of any series that bears interest by mailing a check to the address of the
Person entitled thereto at such address as shall appear in the Security
Register.
If any of the terms of a series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
series of Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any specifications pursuant to Section 301
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
29
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, in addition to the items required by
Section 102, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by
30
the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared. After the
preparation of definitive Securities of such series, the temporary Securities of
such series may be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more definitive Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee for the Securities of each series a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
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Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but 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 registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
If the Securities of any series (or any series and specified
tenor) are to be redeemed, in whole or in part, the Company shall not be
required (i) to issue, register the transfer of or exchange Securities of that
series (or that series and tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
for the Securities of such series shall, in accordance with Section 303 and the
Company Order with respect to such series, authenticate and deliver one or more
Global Securities in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such depositary, and (iii) shall
bear a legend substantially to the following effect: "THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. 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, UNLESS AND UNTIL
THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM" and such other legend as may be required by the depositary.
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Notwithstanding any other provision of this Section 305,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a 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 the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Exchange Act or other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the Securities
of such series. If a successor Depositary for the Securities of such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, the Company will execute, and the
Trustee for the Securities of such series, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Global Securities representing such series in exchange for such Global
Security or Global Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Global Securities. In such event, the Company will execute, and the Trustee for
the Securities of such series, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such Series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Global Securities representing such series in exchange for such Global
Security or Global Securities.
If the Securities of any series shall have been issued in the
form of one or more Global Securities and if an Event of Default with respect to
the Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee for the Securities of such series, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Global Securities representing such
series in exchange for such Global Security or Global Securities.
If specified by the Company pursuant to Section 301 with
respect to Securities of a series, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such terms
as are acceptable to the Company and such Depositary. Thereupon, the Company
shall execute and the Trustee for the Securities of such series shall
authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new
registered Security or Securities of the same series, of an authorized
denomination as requested by such Person
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in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to the Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security in whole for Securities
in definitive form, such Global Security shall be canceled by the Trustee for
the Securities of such series. Securities issued in exchange for a Global
Security shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee for the
Securities of such series. Such Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 306 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, and any such new
Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election, in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities
of such series in the manner specified in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee for the Security
or any agent of any of the foregoing from giving effect to any written
certification, proxy or other authorization furnished by any Depositary, as a
Holder, with respect to such Global Security or impair, as between such
Depositary and owners of beneficial interest in such Global Security, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
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 (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 309, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order, which shall be effected consistent with such Company Order in
accordance with the standard procedures of the Trustee. The Trustee shall
deliver a certificate of each such disposal to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series (i) interest on any Securities which bear interest
at a fixed rate shall be computed on the basis of a 360-day year comprised of
twelve 30-day months and (ii) interest on any Securities which bear interest at
a variable rate shall be computed on the basis of the actual number of days in
an interest period divided by 360.
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SECTION 311. CUSIP Numbers.
The Company in issuing the Securities of any series may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
the "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities of such series, and
any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as no
Event of Default hereunder has occurred and is continuing with respect to the
Securities of any series, to extend interest payment periods from time to time
on all Securities of such series, if so specified as contemplated by Section 301
with respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore
authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment
money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and
payable, or
(ii) will become due and
payable at their Stated Maturity within one
year, or
37
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the Trustee for
the giving of notice of redemption by the
Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire Debt on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 401, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, "Event of Default", wherever used herein
with respect to Securities of any particular series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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(1) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that series at its
Maturity; or
(2) default in the payment of any interest upon any of
the Securities of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and
continuation of such default for a period of 30 days; or
(4) failure on the part of the Company duly to observe or
perform any of the covenants or agreements on the part of the Company
set forth in the Securities of that series or in this Indenture (other
than a covenant or agreement in respect of which a failure by the
Company to duly observe or perform is specifically dealt with in this
Section 501 and other than those set forth exclusively in the terms of
Securities of any series other than that series, or those which have
been included in this Indenture for the benefit of Securities of any
series other than that series), and the continuance of such failure for
a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Securities of that series at the time Outstanding, a written notice
specifying such failure and requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
or any Significant Subsidiary in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law adjudging the Company or any
Significant Subsidiary as being bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or state law, or
appointing a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company or any
Significant Subsidiary, or of substantially all of its properties, or
ordering the winding up or liquidation of the affairs of the Company or
any Significant Subsidiary, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated as being bankrupt or
insolvent, or the consent by the Company or any Significant Subsidiary
to the institution of bankruptcy or insolvency proceedings against it,
or the filing by the Company or any Significant Subsidiary of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law, or the consent by the Company or any Significant
Subsidiary to the filing of any such petition or to the appointment of
a receiver, liquidator, custodian, assignee, trustee, sequestrator (or
other similar official) of the Company or any Significant
39
Subsidiary, or of any substantial part of its properties, or the making
by the Company or any Significant Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or any
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such
action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If one or more of the Events of Default specified in Section
501, other than in Section 501(5) or 501(6), with respect to any particular
series of Securities at the time Outstanding shall have occurred and be
continuing, then in each and every such case, unless the principal of all the
Securities of that series 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 that series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such amount of principal as may be specified by the terms of that
series) of all the Securities of that series to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable. If an Event of Default specified in Section 501(5) or 501(6) occurs
and is continuing, then the principal of (and premium, if any, on), or a portion
thereof, all the Securities of that series shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article Five provided, the Holders of a majority in the
principal amount of the Securities of that series then Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue interest on all
Securities of that series (without duplication of any
amount thereof paid or deposited pursuant to clauses
(B) or (C) below),
(B) the principal of (and premium, if
any, on) any Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities (without
duplication of any amount thereof paid or deposited
pursuant to clause (A) above or clause (C) below),
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
40
Securities (without duplication of any amount thereof
paid or deposited pursuant to clause (A) or clause
(B) above), and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel, and other amounts due to the
Trustee under Section 607; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of (and
premium, if any) and accrued interest on the Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if, with respect to Securities of
any particular series:
(1) default is made in the payment of the principal of
(or premium, if any, on) any of the Securities of that series at its
Maturity, or
(2) default is made in the payment of any interest on any
of the Securities of that series when such interest becomes due and
payable and such default continues for a period of 30 days,
the Company will, upon written demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates provided by the Securities of that series, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the Securities
of that series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
41
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on 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 it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
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 and the Trustee may be a
member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
Five shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the
Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: To the Company or any other Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such ▇▇▇▇▇▇ has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Securities of that series then Outstanding shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Securities of that series then
Outstanding;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) any interest on such Security on the Stated Maturity
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and, if applicable, to convert such Security in accordance with the
provisions of the Security of that series specified pursuant to Section 301(11)
and to institute suit for the enforcement of any such payment and, if
applicable, right to convert, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. 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 severally and respectively to their former positions hereunder and
thereafter all
43
rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, 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 prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security 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 Five 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.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to 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; provided, that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past Default hereunder with respect to such
series and its consequences, except a Default:
(1) in the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
44
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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,
suffered or omitted by it as Trustee, a court in its discretion may require the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
in the manner and to the extent provided in the Trust Indenture Act, having due
regard to the merits and good faith of the claims or defenses made by such
party; provided, that neither this Section 514 nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. 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, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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 Section 601.
SECTION 602. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with
respect to a series of Securities and if it is known to a Responsible Officer of
the Trustee, the Trustee shall give the Holder of Securities of such series
notice of such Default or Event of Default as and to the extent
45
provided by the Trust Indenture Act; provided, however, that (i) in the case of
any Default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof; and (ii) except in the case of a
Default or Event of Default relating to the payment of principal of or any
premium or interest on any Security of any series, the Trustee may withhold the
notice if it determines, in good faith, that withholding the notice is in the
interests of the Holders of such Securities.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any 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 party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its selection
and the 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 by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled
(subject to reasonable confidentiality arrangements as may be proposed
by the Company) to examine the books, records and premises of the
Company, personally or by agent or attorney;
46
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless a Responsible Officer
of Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities of such series and this Indenture.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. Trustee May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel),
47
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense incurred
without negligence or bad faith on its part, including taxes (other
than taxes based upon, measured by or determined by the revenue or
income of the Trustee), arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section 607, the Trustee shall have a lien prior to the
Securities as to all property and funds held by it hereunder for any amount
owing to it pursuant to this Section 607, except with respect to funds held in
trust for the payment of the principal of and interest, premium and other
amounts on, the Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or Section
501(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 607 shall survive any
termination of this Indenture.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible under the Trust Indenture Act to act as such. The
Trustee shall have a combined capital and surplus of at least $50,000,000. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of Federal or state supervising or examining authority, then
for the purposes of this Section 609 and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall, with respect to the
Securities of any series, cease to be eligible in accordance with the provisions
of this Section 609, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article Six.
48
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee in accordance
with the applicable requirements of Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in principal
amount of the Securities of such series then Outstanding, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee in accordance with the applicable requirements of Section 611 shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular
49
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Securities of such series then Outstanding delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one of more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall
50
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
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 paragraph (a) or (b) of this Section 611, as the case may
be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article Six.
(e) No Trustee hereunder shall be liable for the acts or
omissions of any successor Trustee.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration
51
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 614, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section 614, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106, to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 614.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
52
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
, as Trustee
-----------------------
By:
---------------------------,
As Authenticating Agent
By:
---------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) not later than 15 days after each Regular
Record Date for each series of Securities at the time
Outstanding (or each date determined pursuant to Section 301
in the case of any series of Original Issue Discount
Securities), a list for each series of Securities, in such
form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of
such Regular Record Date (or as of such other date, as the
case may be); and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as such Trustee is acting as Security Registrar
for any series of Securities, no such list shall be furnished with respect to
any such series.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar, if it is acting as such. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
53
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any twelve-month period, such report shall cover
the twelve-month period ending January 15 and shall be transmitted by the next
succeeding March 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company (x) shall not, in any transaction or series of
related transactions, merge or consolidate with or into, or sell, assign,
convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to, any Person, and (y) shall not permit any of its
Restricted Subsidiaries to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease or other
disposition of the properties and assets of the Company and its Restricted
Subsidiaries, taken as a whole, substantially as an entirety to any Person,
unless, in each case (x) or (y), at the time and after giving effect thereto
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(i) either: (A) if the transaction or series of
transactions is a consolidation of the Company with or a merger of the
Company with or into any other Person, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person
formed by any consolidation with or merger with or into the Company, or
to which the properties and assets of the Company or the Company and
its Restricted Subsidiaries, taken as a whole, as the case may be,
substantially as an entirety are sold, assigned, conveyed, leased or
otherwise transferred (any such surviving Person or transferee Person
referred to in this clause (B) being the "Surviving Entity"), shall be
a corporation, partnership or trust organized and existing under the
laws of the United States of America, any state thereof or the District
of Columbia and shall expressly assume by a supplemental indenture
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Securities and
this Indenture and, in each case, this Indenture, as so supplemented,
shall remain in full force and effect, and
(ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (and treating any Debt Incurred in connection with or as a result
of such transaction or series of transactions as having been Incurred
at the time of such transaction), no Default or Event of Default shall
have occurred and be continuing;
provided, however, that the foregoing requirements shall not apply to any
transaction or series of transactions involving the sale, assignment,
conveyance, transfer, lease or other disposition of the properties and assets by
any Restricted Subsidiary to any other Restricted Subsidiary, or the merger or
consolidation of any Restricted Subsidiary with or into any other Restricted
Subsidiary.
For all purposes of this Indenture and the Securities,
Subsidiaries of any Surviving Entity will, upon such transaction or series of
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided herein.
SECTION 802. Successor Corporation to be Substituted.
Upon any transaction or series of transactions that are of the
type described in clause (x) or (y) of, and are effected in accordance with,
Section 801, the Surviving Entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company.
Such Surviving Entity thereupon may cause to be signed, and may issue either in
its own name or in the name of Nextel Communications, Inc. or in the name of any
corporation which previously shall have become the Company in accordance with
the provisions of this Article Eight any or all of the Securities issuable
hereunder, which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such Surviving Entity instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver, any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
Surviving Entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose; and, thereafter the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities. All of the
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Securities of a particular series so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities of such series
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date or the execution
hereof.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company (and if such surrender relates
to less than all series of Securities, stating that such surrender is
expressly limited to such series); or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities;
provided, that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of
such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective
only when there is no such Security Outstanding; or
(6) to comply with the requirements of the Commission in
order to effect and maintain the qualification of this Indenture under
the Trust Indenture Act; or
56
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611; or
(9) to make any provisions with respect to the conversion
rights of Holders, including providing for the conversion of the
Securities into any other security or securities of the Company; or
(10) to cure any ambiguity, to correct or supplement any
provision in this Indenture or the Securities of any series which may
be inconsistent with any other provision in this Indenture or such
Securities, or to make any other provisions with respect to matters or
questions arising under this Indenture or the Securities of any series;
provided, that such action pursuant to this clause (10) shall not
adversely affect the interests of the Holders of any such Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as a single class), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (including any change in the index,
indices or formula pursuant to which such rate is determined
that would reduce such rate for any period) or any premium
payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of whose
Holders is required for any such
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supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions
of this Indenture or certain Defaults hereunder and their
consequences) provided for in this Indenture, or modify the
provisions of this Indenture with respect to subordination of
the Securities in a manner adverse to the Holders in any
material respect, or
(3) modify any of the provisions of this Section
902 or Section 513 or Section 1005, except to increase any
such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section 902 and Section 1005, or the deletion
of this proviso, in accordance with the requirements of
Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of (and premium, if any) and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.
Interest on Securities shall be payable without presentment of such Securities
and only to the registered Holders thereof determined as provided in Section
307. The Company shall have the right to require a Holder, in connection with
the payment of the principal of (and premium, if any) and interest on a
Security, to present at the office or agency of the Company at which such
payment is made a certificate, in such form as the Company may from time to time
prescribe, to enable the Company to determine its duties and liabilities with
respect to any taxes, assessments or governmental charges which it may be
required to deduct or withhold therefrom under any present or future law of the
United States of America or of any state, county, municipality or taxing or
withholding authority therein, and the Company shall be entitled to determine
its duties and liabilities with respect to such deduction or withholding on the
basis of information contained in such certificate or, if no such certificate
shall be so presented, on the basis of any presumption created by any such law
and shall be entitled to act in accordance with such determination. Except as
otherwise provided as contemplated by Section 301 with respect to any series of
Securities, at the option of the Company, interest may be paid by check mailed
to the address of the Holder as such address appears in the Security Register.
SECTION 1002. Maintenance of Office or Agency.
So long as any Securities of any series remain Outstanding,
the Company will maintain in each Place of Payment for such series of Securities
an office or agency (which may be an office of the Trustee or an affiliate of
the Trustee) where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. 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 Corporate Trust Office of the
59
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands. In the event any such
notice or demand is so made or served on the Trustee, the Trustee will promptly
forward copies thereof to the Company.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series 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.
With respect to any Global Security, and except as otherwise
may be specified for such Global Security as contemplated by Section 301, the
Corporate Trust Office for the Trustee shall be the Place of Payment where such
Global Security may be presented or surrendered for payment or for registration
of transfer or exchange, or where successor Securities may be delivered in
exchange therefor, provided, however, that any such payment, presentation,
surrender or delivery effected pursuant to the procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of this
Indenture.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, not later than 11:00 a.m., New York City
time, on each due date of the principal of (and premium, if any) or interest on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1003, that such Paying Agent will: (i) comply
with the provisions of the Trust Indenture Act applicable to it as Paying Agent
and (ii) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in
respect of the Securities of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in accordance with Section 301(25), Section
901(2) or Section 901(7), with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in principal
amount of the Securities of such series then Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in any other manner specified, as
contemplated by Section 301, for such Securities or series of Securities. In the
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed in accordance with this Article Eleven (unless all of the Securities of
such series and of a specified tenor are to be redeemed), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series; provided, that the unredeemed portion of the principal amount of
any Security shall be in an authorized denomination or a denomination larger
than the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In
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the case of any redemption in part, the unredeemed portion of the principal
amount of the Security shall be in an authorized denomination for such Security.
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 Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state (including CUSIP number,
if any):
(1) the Redemption Date;
(2) the Redemption Price and accrued interest, if any;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single Security
are to be redeemed, the principal amount of the Security to be
redeemed;
(4) that on the Redemption Date the Redemption Price and
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any; and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election 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 and shall
be irrevocable.
Any notice which is mailed in the manner herein provided shall
be presumed conclusively to have been duly given, whether or not the Holder
receives such notice; and failure duly to give such notice by mail, or any
defect in such notice, to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
redemption for any other Security.
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SECTION 1105. Deposit of Redemption Price.
Prior to 11:00 a.m., New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities, required
as such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Security Registrar shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such ▇▇▇▇▇▇, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided,
that if a Global Security is so surrendered, such new Security so issued shall
be a new Global Security in a denomination equal to the unredeemed portion of
the principal of the Global Security.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to
any sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of 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 Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the term of such Securities or through the application of
permitted optional sinking fund payments pursuant to the term of such
Securities, in each case, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the term of such
series; provided, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and will also deliver to the Security
Registrar any Securities to be so delivered. Not less than 60 days before each
such sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of a particular series, the Company may, at its option, by
Board Resolution or any other manner specified as contemplated by Section 301
for such series of Securities, at any time, with respect to any series of
Securities, elect to have either or both of Section 1302 or Section 1303 be
applied to the Outstanding Securities of such series, upon compliance with the
conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise under Section 1301 of its option
to have this Section 1302 applied to the Outstanding Securities of a particular
series (as a whole and not in part), the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of
such series on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Defeasance"), and thereafter such Securities
shall not be subject to redemption pursuant thereto. For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Debt represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of the Outstanding Securities
of such series to receive, solely from the trust fund described in Section 1305
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest on such Securities when payments
are due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article Thirteen. Subject
to compliance with this Article Thirteen, the Company may exercise its option to
have this Section 1302 applied to the Outstanding Securities of such series
notwithstanding the prior exercise of its option to have Section 1303 applied to
the Securities of such series. Following a Defeasance, payment of the Securities
of such series may not be accelerated because of the occurrence and continuance
of an Event of Default.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise under Section 1301 of its option
to have this Section 1303 applied to the Outstanding Securities of a particular
series (as a whole and not in part), (1) the Company shall be released from its
obligations under Section 1004, and under any additional or substitute covenant
established with respect to the Securities of any series pursuant to Section
301(25), Section 901(2) or Section 901(7) if the Securities of such series have
been determined pursuant to Section 301 to be subject to this provision (with
Section 1004, and any such additional and substitute covenant, referred to
herein as a "Defeasible Covenant"), and
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(2) the occurrence of any event specified in Section 501(4) with respect to such
Defeasible Covenant shall be deemed not to be or result in an Event of Default,
in each case, with respect to the Outstanding Securities of such series as
provided in this Section 1303 on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Defeasible Covenant, whether directly or indirectly by reason of any reference
elsewhere herein to any Defeasible Covenant or by reason of any reference in any
such Defeasible Covenant to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities shall be unaffected
thereby. Following a Covenant Defeasance, payment of the Securities of such
series may not be accelerated because of an Event of Default specified in
Section 501(5) or Section 501(6) or by reference to Section 501(4) and such
Defeasible Covenant.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to the
application of either Section 1302 or Section 1303 to the Outstanding Securities
of a particular series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article Thirteen applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) if the
Securities of such series are denominated in Dollars, (i) money in an
amount, or (ii) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof, in
each case, sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of (and
premium, if any) and interest on the Outstanding Securities of such
series on the Maturity of such principal, premium, if any, or interest,
and any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the due
dates thereof, in accordance with the terms of this Indenture and such
Securities, or (B) if the Securities of such series are denominated in
a currency or currency unit other than Dollars, (i) money in such
currency or currency units in an amount, or (ii) Foreign Government
Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money or such currency or currency unit in an amount, or (iii) a
combination thereof, in each case, sufficient, without reinvestment, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Maturity of such principal, premium,
if any,
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or interest and any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the
due dates thereof, in accordance with the terms of this Indenture and
such Securities. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. As used herein:
(a) "U.S. Government Obligation" means any security which is (i) a
direct obligation of the United States of America for the payment of
which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by
and acting as 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, which, in
either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such 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 principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt; and (b)
"Foreign Government Obligation" means any security which is (x) a
direct obligation of the government that issued such currency for the
payment of which the full faith and credit of such government is
pledged or (y) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality for such government, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by such government, which, in either case (x) or (y),
is not callable or redeemable at the option of the issuer thereof, and
shall also include any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to
any Foreign Government Obligation or a specific payment of principal or
interest on any such Foreign Government Obligation held by such
custodian for the account of the holder of such depositary receipt;
provided, that (except as required by law) such custodian is not
authorized to make any deductions from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in
respect of the Foreign Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302
apply to the Outstanding Securities of a particular series, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon
such opinion shall confirm that, the Holders of Outstanding Securities
of such series will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
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(3) In the event of an election to have Section 1303
apply to the Outstanding Securities of a particular series, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur.
(4) No Default with respect to the Outstanding Securities
of such series shall have occurred and be continuing (A) on the date of
such deposit or (B) insofar as the subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company
in respect of such deposit, it being understood that the condition in
this clause (B) shall not be deemed satisfied until the expiration of
such period.
(5) Such Defeasance or Covenant Defeasance shall not
cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 608 or for purposes of the
Trust Indenture Act with respect to any securities of the Company.
(6) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust shall be registered thereunder or
exempt from registration thereunder.
(8) Such Defeasance or Covenant Defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1305. Deposited Money, U.S. Government Obligations and Foreign
Government Obligations to Be Held in Trust; Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations or Foreign Government
Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section 1305 and Section 1306,
the Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of
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such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations or Foreign Government Obligations deposited pursuant to
Section 1304 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations or Foreign
Government Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to the Outstanding Securities of such series.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Thirteen, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Outstanding Securities of such series from which the
Company has been discharged or released pursuant to Section 1302 or 1303 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article Thirteen with respect to the Outstanding Securities of such series,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1305 with respect to such Securities in
accordance with this Article Thirteen; provided, however, that if the Company
makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
SUBORDINATION
Unless otherwise set forth in the supplemental indenture,
Board Resolution or Officers' Certificate pursuant to Section 301 establishing
the terms of a series of Securities, such series of Securities shall be subject
to the following provisions:
SECTION 1401. Agreement to Subordinate.
(a) The Company covenants and agrees, and each Holder of
Securities issued hereunder by such ▇▇▇▇▇▇'s acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article Fourteen; and each Holder of a Security,
70
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
(b) The payment by the Company of the principal of, and
interest on, the Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
(c) No provision of this Article Fourteen shall prevent
the occurrence of any Default or Event of Default hereunder.
SECTION 1402. Default on Senior Indebtedness.
(a) No direct or indirect payment by or on behalf of the
Company of principal of, premium, if any, or interest on the Securities, whether
pursuant to the terms of the Securities or upon acceleration, by way of
repurchase, redemption, defeasance or otherwise, will be made if, at the time of
such payment, there exists a default in the payment when due of all or any
portion of the obligations under or in respect of any Senior Indebtedness,
whether at maturity, on account of mandatory redemption or prepayment,
acceleration or otherwise, and such default shall not have been cured or waived
or the benefits of this sentence waived by or on of the holders of Senior
Indebtedness.
(b) In addition, during the continuance of any
non-payment default or non-payment event of default with respect to any Senior
Indebtedness pursuant to which the maturity thereof may be accelerated, and upon
receipt by the Trustee of written notice (a "Payment Blockage Notice") from a
holder or holders of such Senior Indebtedness or the trustee or agent acting on
behalf of such Senior Indebtedness, then, unless and until such default or event
of default has been cured or waived or has ceased to exist or such Senior
Indebtedness has been discharged or repaid in full in cash, or the requisite
holders of such Senior Indebtedness have otherwise agreed in writing, no payment
of any kind or character with respect to any principal of or interest on or
distribution will be made by or on behalf of the Company on account of or with
respect to the Securities, during a period (a "Payment Blockage Period")
commencing on the date of receipt of such Payment Blockage Notice by the Trustee
and ending 179 days thereafter.
Notwithstanding anything herein to the contrary, (x) in no
event will a Payment Blockage Period extend beyond 179 days from the date the
Payment Blockage Notice in respect thereof was given and (y) there must be 180
days in any 360-day period during which no Payment Blockage Period is in effect.
Not more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. No default or event of
default that existed or was continuing on the date of commencement of any
Payment Blockage Period with respect to the Senior Indebtedness initiating such
Payment Blockage Period may be, or be made, the basis for the commencement of
any other Payment Blockage Period by the holder or holders of such Senior
Indebtedness or the trustee or agent acting on behalf of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default has been cured or waived for a period of not
less than 180 consecutive days.
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(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is prohibited by
clause (a) or (b) of this Section 1402, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, to the extent necessary to pay such Senior
Indebtedness in full, in cash, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders or to the Trustee.
SECTION 1403. Liquidation; Dissolution; Bankruptcy.
(a) Upon any distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary, assignment for the benefit of
creditors or marshalling of the Company's assets, or in bankruptcy, insolvency,
receivership or other similar proceedings, whether voluntary or involuntary, all
principal, premium, if any, and interest due or to become due to all Senior
Indebtedness of the Company shall first be paid in full in cash, or such payment
duly provided for to the satisfaction of the holders of the Senior Indebtedness,
before the Holders are entitled to receive or retain any payment; and upon any
such dissolution or winding-up or liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or character
whether in cash, property or securities, which the Holders or the Trustee would
be entitled to receive from the Company, except for the provisions of this
Article Fourteen, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, to the extent necessary to pay such Senior
Indebtedness in full in cash, or such payment duly provided for to the
satisfaction of the holders of the Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the benefit of the holders of
such Senior Indebtedness, before any payment or distribution is made to the
Holders or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee before all Senior Indebtedness of the Company is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of such Senior Indebtedness
or their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, to the extent necessary to pay such Senior Indebtedness in full, in
cash, after giving effect to any concurrent payment or distribution to or for
the benefit of the holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders or to the Trustee.
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(c) For purposes of this Article Fourteen, the words
"cash, property or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
Fourteen with respect to the Securities to the payment of all Senior
Indebtedness of the Company that may at the time be outstanding; provided,
however, that (i) such Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The amalgamation or
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties or assets substantially as an entirety,
to another corporation upon the terms and conditions provided for in Article
Eight of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 1403 if such
other corporation shall, as part of such amalgamation, consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight of
this Indenture. Nothing in Section 1402 or in this Section 1403 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
(d) If the Trustee or any Holder of Securities does not
file a proper claim or proof of debt in the form required in any proceeding
referred to above prior to 30 days before the expiration of the time to file
such claim in such proceeding, then the holder of any Senior Indebtedness is
hereby authorized, and has the right, to file an appropriate claim or claims for
or on behalf of such Holder of Securities.
SECTION 1404. Subrogation.
(a) Subject to the payment in full of all Senior
Indebtedness of the Company then outstanding, the rights of the Holders shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until the principal of and interest on
the Securities shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Holders or the Trustee would be
entitled except for the provisions of this Article Fourteen, and no payment over
pursuant to the provisions of this Article Fourteen to or for the benefit of the
holders of such Senior Indebtedness by Holders or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness of the
Company, and the Holders, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article Fourteen are and are intended solely for the purposes of defining
the relative rights of the Holders, on the one hand, and the holders of such
Senior Indebtedness, on the other hand.
(b) Nothing contained in this Article Fourteen or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their
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terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of Senior Indebtedness of the
Company nor shall anything herein or therein prevent the Trustee or any Holder
of Securities from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
(c) Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 601, and the Holders shall be entitled to rely
conclusively upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or the Holders, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Fourteen.
SECTION 1405. Trustee to Effectuate Subordination.
Each Holder of Securities by such ▇▇▇▇▇▇'s acceptance thereof
authorizes and directs the Trustee on such ▇▇▇▇▇▇'s behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Fourteen and appoints the Trustee such ▇▇▇▇▇▇'s attorney-in-fact
for any and all such purposes.
SECTION 1406. Notice by the Company.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article Fourteen, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a Holder or
holders of Senior Indebtedness or from any representative or trustee therefor;
and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section 1406 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which such money was received,
and shall not be affected by any notice to the contrary that may be received by
it within two Business Days prior to such date.
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(b) The Trustee, subject to the provisions of Section
601, shall be entitled to conclusively rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness of
the Company (or a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Fourteen, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Fourteen and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1407. Rights of the Trustee; Holders of Senior Indebtedness.
(a) The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Fourteen
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Section 601, the Trustee
shall not be liable to any holder of such Senior Indebtedness if it shall pay
over or deliver to Holders, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of this
Article Fourteen or otherwise.
SECTION 1408. Subordination May Not be Impaired.
(a) No right of any present or future holder of any
Senior Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Company may, at
any time and from time to time, without the consent of or notice to the Trustee
or the Holders, without incurring responsibility to the Holders and without
impairing or releasing the subordination provided in this Article Fourteen or
the obligations hereunder of the Holders to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in
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any manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising or waive any rights against the Company and any other
Person.
(c) Each present and future holder of Senior Indebtedness
shall be entitled to the benefit of the provisions of this Article Fourteen
notwithstanding that such holder is not a party to this Indenture.
SECTION 1409. Article Applicable to Paying Agents.
(a) In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article Fourteen shall in such case (unless
the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article Fourteen in addition to or in place of
the Trustee; provided, however, that this Section 1409 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 1410. Defeasance of this Article Fourteen.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of United States Government Obligations or
Foreign Government Obligations held in trust under Articles Four or Thirteen
hereof by the Trustee (or other qualifying trustee) and which were deposited in
accordance with the terms of Article Four or Thirteen and not in violation of
Section 1402 for the payment of principal of, premium, if any, and interest on
the Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article Fourteen,
and none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness or any other creditor of the
Company.
SECTION 1411. Subordination Language to be Included In Securities.
Each Security shall contain a subordination provision which
will be substantially in the following form:
"THE SECURITIES ARE SUBORDINATED IN RIGHT OF PAYMENT, IN THE
MANNER AND TO THE EXTENT SET FORTH IN THE INDENTURE, TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS (AS DEFINED IN THE INDENTURE, OR AS SET FORTH IN
ONE OR MORE INDENTURES SUPPLEMENTAL HERETO, A BOARD RESOLUTION IN ACCORDANCE
WITH SECTION 301 OR IN THIS SECURITY). EACH HOLDER BY ACCEPTING A SECURITY
AGREES TO SUCH SUBORDINATION AND AUTHORIZES THE TRUSTEE TO GIVE IT EFFECT."
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By:
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Name:
Title:
Attest:
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, Trustee
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By:
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Name:
Title:
Attest:
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