Exhibit 4.1
EXECUTION VERSION
INTERNATIONAL LEASE FINANCE CORPORATION
as Issuer
TO
WILMINGTON TRUST FSB,
as Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Paying Agent, Security Registrar and Authentication Agent
INDENTURE
Dated as of March 22, 2010
INTERNATIONAL LEASE FINANCE CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture
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Trust Indenture |
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Act Section |
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Indenture Section |
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310 |
(a) |
(1) |
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609 |
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(a) |
(2) |
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609 |
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(a) |
(3) |
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Not Applicable |
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(a) |
(4) |
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Not Applicable |
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(a) |
(5) |
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609 |
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(b) |
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608, 610 |
311 |
(a) |
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613(1), 613(3) |
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(b) |
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613(2) |
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(b) |
(2) |
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703(1), 703(2) |
312 |
(a) |
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701, 702(1) |
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(b) |
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702(2) |
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(c) |
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702(3) |
313 |
(a) |
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703(1) |
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(b) |
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703(2) |
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(c) |
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703(1), 703(2) |
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(d) |
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703(3) |
314 |
(a) |
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704 |
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(b) |
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Not Applicable |
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(c) |
(1) |
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102 |
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(c) |
(2) |
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102 |
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(c) |
(3) |
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Not Applicable |
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(d) |
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Not applicable |
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(e) |
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102 |
315 |
(a) |
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601(1) |
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(b) |
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602 |
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(c) |
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601(2) |
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(d) |
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601(3) |
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(d) |
(1) |
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601(3)(i) |
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(d) |
(2) |
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601(3)(ii) |
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(d) |
(3) |
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601(3)(iii) |
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(e) |
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514 |
316 |
(a) |
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101 |
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(a) |
(1)(A) |
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502, 512 |
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(a) |
(1)(B) |
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513 |
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(a) |
(2) |
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Not Applicable |
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(b) |
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508 |
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(c) |
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Not Applicable |
317 |
(a) |
(1) |
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503 |
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(a) |
(2) |
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504 |
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(b) |
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1003 |
318 |
(a) |
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107 |
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NOTE: |
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This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture. |
TABLE OF CONTENTS
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Page |
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101. |
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Definitions |
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2 |
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SECTION 102. |
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Other Definitions |
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8 |
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SECTION 103. |
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Compliance Certificates and Opinions |
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8 |
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SECTION 104. |
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Form of Documents Delivered to Trustee |
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9 |
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SECTION 105. |
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Acts of Holders |
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10 |
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SECTION 106. |
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Notices, Etc., to Trustee and Company |
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10 |
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SECTION 107. |
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Notice to Holders; Waiver |
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11 |
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SECTION 108. |
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Conflict with Trust Indenture Act |
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11 |
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SECTION 109. |
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Effect of Headings and Table of Contents |
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11 |
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SECTION 110. |
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Successors and Assigns |
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12 |
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SECTION 111. |
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Separability Clause |
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12 |
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SECTION 112. |
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Benefits of Indenture |
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12 |
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SECTION 113. |
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Governing Law |
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12 |
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SECTION 114. |
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Legal Holidays |
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12 |
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SECTION 115. |
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USA Patriot Act |
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12 |
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ARTICLE TWO |
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SECURITY FORMS |
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SECTION 201. |
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Forms Generally |
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13 |
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ARTICLE THREE
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THE SECURITIES
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SECTION 301. |
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Amount Unlimited; Issuable in Series |
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15 |
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SECTION 302. |
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Denominations |
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18 |
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SECTION 303. |
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Execution, Authentication, Delivery and Dating |
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18 |
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SECTION 304. |
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Temporary Securities |
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20 |
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SECTION 305. |
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Registration; Registration of Transfer and Exchange |
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20 |
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SECTION 306. |
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Mutilated, Destroyed, Lost and Stolen Securities |
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22 |
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SECTION 307. |
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Payment of Interest; Interest Rights Preserved |
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23 |
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SECTION 308. |
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Persons Deemed Owners |
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24 |
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SECTION 309. |
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Cancellation |
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25 |
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SECTION 310. |
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Computation of Interest |
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25 |
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-i-
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Page |
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ARTICLE FOUR
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SATISFACTION AND DISCHARGE
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SECTION 401. |
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Satisfaction and Discharge of Indenture |
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25 |
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SECTION 402. |
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Application of Trust Money |
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26 |
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ARTICLE FIVE |
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REMEDIES |
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SECTION 501. |
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Events of Default |
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27 |
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SECTION 502. |
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Acceleration of Maturity; Rescission and Annulment |
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28 |
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SECTION 503. |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
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30 |
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SECTION 504. |
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Trustee May File Proofs of Claim |
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30 |
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SECTION 505. |
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Trustee May Enforce Claims Without Possession of Securities |
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31 |
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SECTION 506. |
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Application of Money Collected |
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31 |
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SECTION 507. |
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Limitation on Suits |
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32 |
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SECTION 508. |
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Unconditional Right of Holders to Receive Principal, Premium and Interest |
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32 |
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SECTION 509. |
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Restoration of Rights and Remedies |
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33 |
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SECTION 510. |
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Rights and Remedies Cumulative |
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33 |
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SECTION 511. |
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Delay or Omission Not Waiver |
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33 |
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SECTION 512. |
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Control by Holders |
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33 |
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SECTION 513. |
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Waiver of Past Defaults |
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34 |
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SECTION 514. |
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Undertaking for Costs |
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34 |
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SECTION 515. |
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Waiver of Stay or Extension Laws |
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35 |
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ARTICLE SIX
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THE TRUSTEE
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SECTION 601. |
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Certain Duties and Responsibilities |
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35 |
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SECTION 602. |
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Notice of Defaults |
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36 |
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SECTION 603. |
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Certain Rights of Trustee |
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36 |
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SECTION 604. |
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Not Responsible for Recitals or Issuance of Securities |
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38 |
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SECTION 605. |
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May Hold Securities |
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38 |
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SECTION 606. |
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Money Held in Trust |
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38 |
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SECTION 607. |
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Compensation and Reimbursement |
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38 |
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SECTION 608. |
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Disqualification; Conflicting Interests |
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39 |
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SECTION 609. |
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Corporate Trustee Required; Eligibility |
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39 |
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SECTION 610. |
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Resignation and Removal; Appointment of Successor |
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39 |
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SECTION 611. |
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Acceptance of Appointment by Successor |
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41 |
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SECTION 612. |
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Merger, Conversion, Consolidation or Succession to Business |
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42 |
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SECTION 613. |
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Preferential Collection of Claims Against Company |
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42 |
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SECTION 614. |
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Appointment of Authentication Agent |
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45 |
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SECTION 615. |
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Roles of Trustee |
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47 |
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-ii-
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Page |
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ARTICLE SEVEN
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HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. |
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Company to Furnish Trustee Names and Addresses of Holders |
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47 |
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SECTION 702. |
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Preservation of Information; Communications to Holders |
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47 |
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SECTION 703. |
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Reports by Trustee |
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48 |
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SECTION 704. |
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Reports by Company |
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49 |
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ARTICLE EIGHT
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CONSOLIDATION, MERGER, CONVEYANCE,
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TRANSFER OR LEASE
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SECTION 801. |
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Company May Consolidate, Etc., Only on Certain Terms |
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51 |
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SECTION 802. |
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Successor Corporation Substituted |
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51 |
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ARTICLE NINE
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SUPPLEMENTAL INDENTURE
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SECTION 901. |
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Supplemental Indentures Without Consent of Holders |
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52 |
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SECTION 902. |
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Supplemental Indentures with Consent of Holders |
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53 |
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SECTION 903. |
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Execution of Supplemental Indentures |
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54 |
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SECTION 904. |
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Effect of Supplemental Indentures |
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54 |
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SECTION 905. |
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Conformity with Trust Indenture Act |
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55 |
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SECTION 906. |
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Reference in Securities to Supplemental Indentures |
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55 |
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SECTION 907. |
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Reservation of Rights of Trustee |
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55 |
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ARTICLE TEN
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COVENANTS |
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SECTION 1001. |
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Payment of Principal, Premium and Interest |
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55 |
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SECTION 1002. |
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Maintenance of Office or Agency |
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55 |
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SECTION 1003. |
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Money for Securities Payments to Be Held in Trust |
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56 |
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SECTION 1004. |
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Corporate Existence |
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57 |
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SECTION 1005. |
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Payment of Taxes and Other Claims |
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57 |
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SECTION 1006. |
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Restrictions upon Mortgage, Lien or Pledge of Property |
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58 |
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SECTION 1007. |
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Restrictions on the Payment of Dividends |
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60 |
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SECTION 1008. |
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Restrictions on Permitting Restricted Subsidiaries to
Become Non-Restricted Subsidiaries and Non-Restricted Subsidiaries to Become Restricted Subsidiaries |
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60 |
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SECTION 1009. |
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Restriction on Investments in Non-Restricted Subsidiaries |
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60 |
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SECTION 1010. |
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Statement by Officers as to Default |
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61 |
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SECTION 1011. |
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Waiver of Certain Covenants |
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61 |
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-iii-
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Page |
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
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SECTION 1101. |
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Applicability of Article |
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61 |
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SECTION 1102. |
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Election to Redeem; Notice to Trustee |
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61 |
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SECTION 1103. |
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Selection by Trustee of Securities to Be Redeemed |
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62 |
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SECTION 1104. |
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Notice of Redemption |
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62 |
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SECTION 1105. |
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Deposit of Redemption Price |
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63 |
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SECTION 1106. |
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Securities Payable on Redemption Date |
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63 |
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SECTION 1107. |
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Securities Redeemed in Part |
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63 |
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ARTICLE TWELVE
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SINKING FUNDS
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SECTION 1201. |
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Applicability of Article |
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64 |
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SECTION 1202. |
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Satisfaction of Sinking Fund Payments with Securities |
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64 |
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SECTION 1203. |
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Redemption of Securities for Sinking Fund |
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64 |
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ARTICLE THIRTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 1301. |
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Applicability of Article; Companys Option to Effect Defeasance or Covenant Defeasance |
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65 |
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SECTION 1302. |
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Defeasance and Discharge |
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65 |
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SECTION 1303. |
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Covenant Defeasance |
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65 |
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SECTION 1304. |
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Conditions to Defeasance or Covenant Defeasance |
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66 |
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SECTION 1305. |
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
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68 |
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SECTION 1306. |
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Knowledge of Trustee |
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68 |
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Appendix A |
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Provisions Relating to Initial Securities, Additional Securities and Exchange
Securities and any other Additional Securities that are 2015 Notes or 2017 Notes |
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EXHIBIT INDEX |
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Exhibit A |
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Initial Security |
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Exhibit B |
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Exchange Security |
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-iv-
INDENTURE, dated as of March 22, 2010, among International Lease Finance Corporation, a
corporation duly organized and existing under the laws of the State of California (herein called
the Company), Wilmington Trust FSB, a federal savings bank, as trustee (together with its
successors and assigns, in such capacity, the Trustee) and Deutsche Bank Trust Company Americas,
a New York banking corporation, as paying agent, security registrar and authentication agent
(together with its successors and assigns, in such capacity, as the context requires, the Paying
Agent, Security Registrar or Authentication Agent).
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.
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of (a) $1,000,000,000 aggregate principal amount of the Companys 8.625%
Senior Notes due 2015 issued on the Issue Date (the Original 2015 Notes and, together with any
Additional Securities that may be issued after the Issue Date of the same series as the Original
2015 Notes, the 2015 Notes) and $1,000,000,000 aggregate principal amount of the Companys 8.750%
Senior Notes due 2017 issued on the Issue Date (the Original 2017 Notes and, together with any
Additional Securities that may be issued after the Issue Date of the same series as the Original
2017 Notes, the 2017 Notes; the Original 2017 Notes together with the Original 2015 Notes, the
Original Securities), (b) if and when issued as provided in a Registration Agreement (as defined
in Appendix A hereto (the Appendix)) in exchange for Initial Securities (as defined in Appendix
A), the 2015 Notes (the 2015 Exchange Notes) and the 2017 Notes (the 2017 Exchange Notes and
together with the 2015 Exchange Notes, the Exchange Securities) issued in an Exchange Offer (as
defined in the Appendix) or otherwise registered under the Securities Act (as defined in the
Appendix) and issued in the form of Exhibit B and (c) any other Additional Securities. Subject to
the conditions and compliance with the covenants set forth herein, the Company may issue an
unlimited aggregate principal amount of Additional Securities (as defined herein).
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 series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as in effect on the date in
question;
(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) Whenever in this Indenture there is mentioned, in any context, principal, interest
or any other amount payable under or with respect to any Securities, such mention shall be
deemed to include mention of the payment of Additional Interest, to the extent that, in such
context, Additional Interest is, was, or would be payable in respect thereof.
Certain terms, used principally in Articles Six and Ten, are defined in those Articles.
Act, when used with respect to any Holder, has the meaning specified in Section 105.
Additional Interest means all additional interest then owing pursuant to the Registration
Agreement.
Additional Securities means Securities issued from time to time under this Indenture
subsequent to the Issue Date.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
-2-
Board of Directors means either the board of directors of the Company or any committee of
that board duly authorized to act hereunder.
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.
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 to close or such other day as provided in or pursuant to
an Officers Certificate or supplemental indenture referred to in Section 301.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, 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, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee, the Paying Agent, Authentication Agent or the Security Registrar, as
applicable.
Consolidated Net Tangible Assets means the total amount of assets (less depreciation and
valuation reserves and other reserves and items deductible from the gross book value of specific
asset amounts under generally accepted accounting principles) which under generally accepted
accounting principles would be included on a balance sheet of the Company and its Restricted
Subsidiaries, after deducting therefrom (i) all liability items except indebtedness (whether
incurred, assumed or guaranteed) for borrowed money maturing by its terms more than one year from
the date of creation thereof or which is extendible or renewable at the sole option of the obligor
in such manner that it may become payable more than one year from the date of creation thereof,
shareholders equity and reserves for deferred income taxes, (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like intangibles, which in
each case would be so included on such balance sheet, and (iii) amounts invested in, or equity in
the net assets of, Non-Restricted Subsidiaries.
Corporate Trust Office means the principal office of the Trustee at 505 6th Street, Suite
1290, Minneapolis, MN 55402 (facsimile number for receipt of notices: (612) 217-5651) or at such
other location as shall be designated by written notice to the other parties hereto.
corporation includes corporations, associations, companies and business trusts.
covenant defeasance has the meaning specified in Section 1303.
-3-
Defaulted Interest has the meaning specified in Section 307.
defeasance has the meaning specified in Section 1302.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depositary by the
Company pursuant to Section 301, and if at any time there is more than one such Person,
Depositary as used with respect to the Securities of any series shall mean the Depositary with
respect to the Securities of such series.
Event of Default has the meaning specified in Section 501.
Global Security means (i) with respect to 2015 Notes and 2017 Notes, a Security in fully
registered, global form without interest coupons subject to the provisions of the Appendix and (ii)
otherwise, a Security in the form prescribed in Section 204 evidencing all or part of a series of
Securities, issued to the Depositary for such series or its nominee, and registered in the name of
such Depositary or nominee.
Holder means a Person in whose name a Security is registered in the Security Register.
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 and shall include the terms of particular series of Securities
established as contemplated by Section 301.
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.
Issue Date means March 22, 2010, the date on which the Original Securities are issued.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
mortgages means any mortgage, pledge, lien or other encumbrance of any nature.
Non-Restricted Subsidiary means (i) any Subsidiary which shall be designated by the Board of
Directors as a Non-Restricted Subsidiary, and (ii) any other Subsidiary of which the majority of
the voting stock is owned directly or indirectly by one or more Non-Restricted Subsidiaries, if
such other Subsidiary is a corporation, or in which a Non-Restricted Subsidiary is a general
partner, if such other Subsidiary is a limited partnership. An
initial list of Non-Restricted Subsidiaries is set forth in Exhibit C
hereto.
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Officers Certificate means a certificate signed by the Chairman of the Board, the
President, the Chief Financial Officer 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.
Opinion of Counsel means a written opinion of counsel reasonably acceptable to the Trustee,
the Paying Agent, Authentication Agent or Security Registrar if addressed to them who may be
counsel for the Company, and who shall be acceptable to the Trustee, the Paying Agent,
Authentication Agent or Security Registrar if addressed to them.
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 cancelled by the Security Registrar or delivered to the
Security Registrar 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 defeased pursuant to Section 1302 hereof; and
(iv) 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 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;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) 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, (ii) the principal amount of a Security denominated in a
foreign currency or currency unit shall be the U.S. dollar equivalent, determined as of the date of
original issuance of such Security, of the principal amount of such Security (or, in the case of an
Original Issue Discount Security denominated in a foreign currency or currency unit, the U.S.
dollar equivalent, determined as of the date of original issuance of such Security, of the amount
determined as provided in (i) above), and (iii) 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 or
the Security Registrar shall be protected in relying upon any such request, demand, authorization, direction,
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notice, consent or waiver, only Securities which the Trustee or the Security Registrar actually
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
or the Security Registrar the pledgees 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 which such Person shall
initially be Deutsche Bank Trust Company Americas.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in or 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.
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.
Registrars Corporate Trust Office means the principal office of the Security Registrar at
60 Wall Street, 27th Floor, New York, NY 10005 (facsimile number for receipt of notices: (732)
578-4635) or at such other location at which at any particular time its corporate trust business
shall be administered.
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 within
Corporate Trust Administration (or any successor group of the Trustee), including any director,
managing director, vice president, assistant vice president, corporate trust officer, assistant
corporate trust officer, secretary, assistant secretary, treasurer, assistant treasurer, associate
or any other officer or assistant officer of the Trustee customarily performing functions similar
to those performed by the persons who at that time shall be such officers having direct
responsibility for the administration of this Indenture, and also means, with respect to a
particular corporate
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trust matter, any other officer to whom such trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
Restricted Subsidiary means any Subsidiary other than a Non-Restricted Subsidiary;
provided, however, that the Board of Directors may, subject to Section 1008
designate any Non-Restricted Subsidiary, substantially all of the physical properties or business
of which are located in the United States of America, its territories and possessions, or Puerto
Rico and which does not meet the requirements of clause (ii) of the definition of Non-Restricted
Subsidiary, as a Restricted Subsidiary.
Securities has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable,
subject to any provisions for adjustment or deferral of any such date as contemplated by Section
301.
Subsidiary means a corporation, partnership or trust more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
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 the 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 that the
Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as amended and except as provided in
Section 905.
U.S. Government Obligations has the meaning specified in Section 1304(1).
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.
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Voting Stock means stock or other interests evidencing ownership in a corporation,
partnership or trust which ordinarily has voting power for the election of directors, or other
persons performing equivalent functions, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
SECTION 102. Other Definitions.
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Defined in |
Term |
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Section |
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Appendix
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Preamble |
Clearstream
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Appendix A |
Common Depositary
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Appendix A |
Definitive Security
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Appendix A |
Depositary
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Appendix A |
Euroclear
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Appendix A |
Exchange Offer
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Appendix A |
Exchange Securities
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Preamble |
Federal Bankruptcy Act
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613 |
Global Securities Legend
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Appendix A |
Initial Purchasers
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Appendix A |
Initial Securities
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Appendix A |
Notice of Default
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501 |
Original Securities
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Preamble |
Purchase Agreement
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Appendix A |
QIB
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Appendix A |
Registration Agreement
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Appendix A |
Registration Default
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Appendix A |
Registration Rights Agreement
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Appendix A |
Regulation S
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Appendix A |
Regulation S Securities
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Appendix A |
Restricted Period
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Appendix A |
Restricted Securities Legend
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Appendix A |
Rule 144A
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Appendix A |
Rule 144A Securities
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Appendix A |
Securities Custodian
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Appendix A |
Shelf Registration Statement
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Appendix A |
Transfer Restricted Securities
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Appendix A |
Unrestricted Definitive Security
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Appendix A |
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any application or request by
the Company to the Trustee, the Security Registrar or the Paying Agent to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee, the Security Registrar or
the Paying Agent, as applicable, an Officers Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
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complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, including any
request to authenticate and deliver Securities of any series pursuant to Section 303, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, other than certificates provided pursuant to Section 704(4), 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 or she has made such
examination or investigation as is necessary to enable him or her 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 104. 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 Counsel, 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 or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel or representations by 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.
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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 105. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an 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.
(2) 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 or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her 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.
(3) The ownership of Securities shall be proved by the Security Register.
(4) 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, Security
Registrar, Paying Agent or Authentication Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 106. 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 to or with the Trustee at its
Corporate Trust Office,
(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,
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first-class postage prepaid, to the Company addressed to it at the address of its
principal office or at any other address previously furnished in writing to the Trustee by
the Company, or
(3) the Paying Agent or Security Registrar by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given furnished or filed in writing to or
with the Paying Agent or Registrar, respectively, at the Registrars Corporate Trust Office
or any such other address previously furnished in writing to the Company and the Trustee by
the Paying Agent, Authentication Agent or Registrar, as the case may be.
SECTION 107. 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 affected by such event, at his or her address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. 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 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 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust Indenture Act or
which is automatically deemed included in this Indenture by any of the provisions of the Trust
Indenture Act, such required or automatically included provision shall control.
SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
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SECTION 111. 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 112. 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, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York without regard to its conflict of law principles (except Sections
5-1401 and 5-1402 of the New York General Obligations Law).
SECTION 114. 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 (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest,
except as provided in Section 502(1)(iii), if applicable, shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. USA Patriot Act.
The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or
supplemented from time to time, the USA Patriot Act), the Trustee, the Paying Agent, the
Authentication Agent and the Security Registrar, like all financial institutions, are required to
obtain, verify and record information that identifies each person or legal entity that opens an
account. The parties to this Indenture agree that they will provide the Trustee, the Paying Agent,
the Authentication Agent, and the Security Registrar with such information as the Trustee, the
Paying Agent, the Authentication Agent and the Security Registrar may reasonably request in order
for the Trustee, the Paying Agent, the Authentication Agent and the Security Registrar to satisfy
the requirements of the USA Patriot Act.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Original Securities and Exchange Securities.
Provisions relating to the Initial Securities, the Exchange Securities and any other
Additional Securities that are 2015 Notes or 2017 Notes are set forth in the Appendix, which is
hereby incorporated in and expressly made a part of this Indenture. (i) The Initial Securities and
the Trustees certificate of authentication and (ii) any Additional Securities that are 2015 Notes
or 2017 Notes (if issued as Transfer Restricted Securities) and the Trustees certificate of
authentication shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. (i) The Exchange Securities and the
Trustees certificate of authentication and (ii) any Additional Securities that are 2015 Notes or
2017 Notes issued other than as Transfer Restricted Securities and the Trustees certificate of
authentication shall each be substantially in the form of Exhibit B hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
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SECTION 202. |
Forms of Securities other than the 2015 Notes and the 2017 Notes (including the
Exchange Securities for each such series). |
The Securities of each series other than the 2015 Notes and 2017 Notes shall be in
substantially the form (including permanent global 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, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such 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. If all of the Securities of
any series established by action taken pursuant to a Board Resolution are not to be issued at one
time, it shall not be necessary to deliver a record of such action at the time of issuance of each
Security of such series, but an appropriate record of such action shall be delivered at or before
the time of issuance of the first Security of such series.
The definitive Securities shall be printed, lithographed or engraved or may be produced in any
other manner, all as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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SECTION 203. |
Form of Trustees Certificate of Authentication for Securities other than the 2015
Notes and the 2017 Notes (including the Exchange Securities for each such series). |
The Trustees certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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WILMINGTON TRUST FSB,
as Trustee
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By: |
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Authorized Signatory |
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SECTION 204. |
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Provisions of Global Securities other than the 2015 Notes and
the 2017 Notes (including the Exchange Securities for each
such series). |
If Securities of a series other than the 2015 Notes and 2017 Notes are issuable in whole or in
part in global form, as contemplated by Section 301(17), then, notwithstanding the provisions of
Sections 301 and 302, any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the aggregate
principal amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate principal amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. The global form may be permanent or temporary. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in the principal amount,
of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been or simultaneously is delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of such a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 301, payment of principal of and any premium and interest on any such
Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 307 and except as provided in the preceding
paragraph, the Company, the Trustee, the Security Registrar and any agent of the Company, the
Trustee or the Security Registrar shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by such a permanent Global
Security as shall be
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specified in a written or electronic statement of the Depositary with respect to such
permanent Global Security, for purposes of obtaining any consents or directions required to be
given by the Holders pursuant to this Indenture.
Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities other than the 2015 Notes and 2017 Notes, any Global Security shall provide, in addition
to the provisions established pursuant to Sections 201 and 301 and set forth in the preceding
paragraphs, that the Depositary will not sell, assign, transfer or otherwise convey any beneficial
interest in such Global Security unless such beneficial interest is in an amount equal to an
authorized denomination for Securities of such series, and that the Depositary, by accepting such
Global Security, agrees to be bound by such provision.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Original Securities which may be authenticated and delivered
under this Indenture on the Issue Date is $1,000,000,000 aggregate principal amount of the 2015
Notes and $1,000,000,000 aggregate principal amount of the 2017 Notes. The Company may from time
to time after the Issue Date issue Additional Securities under this Indenture in an unlimited
principal amount, which may be of the same series or a different series than Securities of any
other series previously issued. Any series may be reopened at any time and from time to time,
after its original issue date.
All 2015 Exchange Notes shall be of the same series as all other 2015 Notes for all purposes
under this Indenture. All 2017 Exchange Notes shall be of the same series as all other 2017 Notes
for all purposes under this Indenture. The 2015 Notes shall be of a separate series of Securities
from the 2017 Notes, and each of the 2015 Notes and the 2017 Notes shall be of a separate series of
Securities from any other Additional Securities, unless the Officers Certificate establishing such
Additional Securities specifies that they are 2015 Notes or 2017 Notes, respectively.
The Securities may be issued in one or more series and the Securities of each such series
shall rank equally and pari passu with the Securities of each other series, unless otherwise
provided pursuant to this Section 301. There shall be established in or pursuant to a Board
Resolution 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 Additional Securities of any series after the Issue Date,
(1) the title of the Securities of the Series (which shall distinguish the Securities
of the series from all other Securities);
(2) any limit upon 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 Section 304, 305, 306, 906
or 1107 and
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except for any Securities which, pursuant to Section 303, shall not have been issued and
sold by the Company and are therefore deemed never to have been authenticated and delivered
hereunder);
(3) 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;
(4) the date or dates on which the principal of the Securities of the series is payable
and any provision for the deferral of any such date;
(5) the rate or rates (or the formula pursuant to which such rate or rates shall be
determined) at which the Securities of the series shall bear interest, if any, including the
rate of interest applicable on overdue payments of principal or interest, if different from
the rate of interest stated in the Security; the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be payable and any
provisions for the adjustment or deferral of any such date and the Regular Record Date or
any formula for determining the Record Date for the interest payable on any Interest Payment
Date;
(6) the place or places where the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, and the place or places where the
Securities of the series may be presented for registration of transfer or exchange and the
place or places where notices and demands to or upon the Company in respect of the
Securities of the series may be made;
(7) if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) 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;
(9) if other than denominations of $2,000 and any integral multiples of $1,000, the
denominations in which Securities of the series shall be issuable;
(10) the currency or currencies, including composite currencies, in which payment of
the principal of (and premium, if any) and interest, if any, on the Securities of the series
shall be payable if other than the currency of the United States, which may be different for
principal, premium, if any, and interest, if any;
(11) if the principal of (and premium, if any) or interest, if any, on the Securities
of the series are to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies other than that in which the Securities are
stated to be payable,
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the currency or currencies in which payment of the principal of (and premium, if any)
or interest on Securities of such series as to which such election is made shall be payable,
and the period or periods within which, and the terms and conditions upon which, such
election may be made;
(12) if the amount of payments of principal of (and premium, if any) or interest, if
any, on the Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(13) 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;
(14) if the Securities of the series shall not rank equally and pari passu with the
Securities of each other series issued under this Indenture, the ranking of the Securities
of the series;
(15) any Event of Default with respect to the Securities of the series, if not set
forth herein, and any additions, modifications or deletions in the Events of Default,
covenants of the Company, notice requirements or redemption provisions set forth herein with
respect to the Securities of such series;
(16) whether either or both of Section 1302 and Section 1303 shall not apply to the
Securities of the series;
(17) whether the Securities of the series shall be issued in whole or in part in the
form of one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities, which Depositary shall be, if then required by applicable law or
regulation, a clearing agency registered under the Securities Exchange Act of 1934, as
amended, the form of any legend or legends which shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.2 of the Appendix in which any such
Global Security may be exchanged in whole or in part for Additional Securities registered,
or any transfer of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the depositary for such Global Security or a nominee thereof;
and
(18) any other terms of the series, including the covenants to be applicable to
Securities of such series.
The foregoing requirements shall be inapplicable to the Original Securities and the Exchange
Securities provided that (i) the form of the Original Securities and the form of the Exchange
Securities shall be set forth in an exhibit to an Officers Certificate to be delivered to the
Trustee on the Issue Date and (ii) such forms shall conform to Exhibits A and B, respectively.
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
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referred to above and (subject to Section 303) set forth 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.
If any of the terms of the 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 Officers Certificate setting forth the terms of the series. If all of the Securities of any
series established by action taken pursuant to a Board Resolution are not to be issued at one time,
it shall not be necessary to deliver a record of such action at the time of issuance of each
Security of such series, but an appropriate record of such action shall be delivered at or before
the time of issuance of the first Security of such series.
SECTION 302. Denominations.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, 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 such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $2,000 and any integral multiples of $1,000 in excess 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, its Chief Financial Officer or one of its Vice Presidents. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities 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.
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 make
available for delivery such Securities. The Trustee shall authenticate and make available for
delivery upon such Company Order (a) Original Securities for original issue on the Issue Date in an
aggregate principal amount of $1,000,000,000 of the 2015 Notes and in an aggregate principal amount
of $1,000,000,000 of the 2017 Notes, (b) subject to the terms of this Indenture, Additional
Securities in an aggregate principal amount to be determined at the time of issuance and specified
therein and (c) the Exchange Securities for issuance in an Exchange Offer pursuant to a
Registration Agreement for a like principal amount of Initial Securities of the same series
exchanged pursuant thereto or otherwise pursuant to an effective registration statement under the
Securities Act. Such order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated. Notwithstanding anything to
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the contrary in the Indenture or the Appendix, any issuance of Additional Securities after the
Issue Date shall be in a principal amount of at least $2,000, whether such Additional Securities
are of the same or a different series than the Original Securities.
If all of the Securities of any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit, such Company Order
may set forth procedures in compliance with the terms of the Indenture for the issuance of such
Securities and determining the terms of particular Securities of such series, such as interest
rate, maturity date, date of issuance and date from which interest shall accrue. In authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) the form of such Securities is in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and
(3) 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
and paid for, will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles affecting
creditors rights generally, and except that such counsel may advise that the enforceability
of the Securities is subject to the effect of general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and fair dealing and
the possible unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law, and, if applicable, to provisions of
law which may require that a judgment for money damages rendered by a court in the United
States be expressed in United States dollars.
If such 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 Trustees 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 time of authentication upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
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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 and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Security Registrar for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 103 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the Company, 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.
The Trustee may appoint one or more authentication agents reasonably acceptable to the Company
to authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by
a Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the
terms of such appointment, an authentication agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authentication agent has the same rights as any Security
Registrar, Paying Agent or agent for service of notices and demands.
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, reproduced 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
officers 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 without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series to
the Security Registrar, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute, and, upon Company Order, the
Trustee shall authenticate and make available for delivery, in exchange therefor a like principal
amount of definitive Securities of the same series and tenor of authorized denominations. 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.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Registrars Corporate Trust Office 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 referred to as the Security Register) in which,
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subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities (which shall, with respect to the 2015
Notes and the 2017 Notes (including the Exchange Securities for each such series), at all times
also be subject to compliance with the Appendix). Deutsche Bank Trust Company Americas 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 Registrars
Corporate Trust Office, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, 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 tenor and aggregate
principal amount and Stated Maturity.
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 tenor, aggregate principal amount
and Stated Maturity, upon surrender of the Securities to be exchanged at the Registrars Corporate
Trust Office. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All 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 Security Registrar) 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 to the Holder shall be made 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.
The Company shall not be required (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before any selection for
redemption of Securities of like tenor and of the series of which such Security is a part and
ending at the close of business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of such series to be redeemed, 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 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 the Securities of such series shall no longer be
eligible under
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Section 301, 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
ineligibility, the Companys election to issue Global Securities pursuant to Section 301 shall no
longer be effective with respect to the Securities of such series and the Company will execute, and
the Trustee, 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
Securities representing such series in exchange for such Global Security or 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 Securities. In such event the Company will execute, and the Trustee, 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 Securities
representing such series in exchange for such Global Security or Securities.
Notwithstanding any other provision in this Indenture, a Global Security (other than a Global
Security representing a 2015 Note, a 2017 Note or an Exchange Security, transfer of which shall be
subject to the Appendix) may not be transferred except as a whole by the Depositary with respect to
such Global Security to a nominee of such Depositary, or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary, or except to the Trustee in exchange for
definitive Securities as provided in this Indenture. Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities evidenced in whole or in part by a Global
Security, the Depositary may not sell, assign, transfer or otherwise convey any beneficial interest
in a Global Security evidencing all or part of the Securities of such series unless such beneficial
interest is in an amount equal to an authorized denomination for Securities of such series.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Security Registrar, 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, the Trustee and the Security Registrar (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 the Trustee or Security Registrar to save the Company,
the Trustee, Security Registrar and any agent of either of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security has been acquired
by a bona fide purchaser, the Company shall execute and, upon receipt
of a Company Order, the
Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor, principal amount and Stated
Maturity and bearing a number not contemporaneously outstanding. If after the delivery of such new
Security, a bona fide purchaser of the original Security in lieu of which
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such new Security was issued presents for payment such original Security, the Company, the
Trustee and the Security Registrar shall be entitled to recover such new Security from the Person
to whom it was delivered or any Person taking therefrom, except a holder in due course, and the
Security Registrar, Trustee and the Company shall be entitled to recover upon the indemnity
provided therefor to the extent of any loss, damage, cost or expenses incurred by the Company, the
Trustee or the Security Registrar or any agent of any of them in connection therewith. Such
indemnification of the Company shall not require the posting of a bond.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable or shall have become subject to notice of redemption in full, the Company in
its discretion may, instead of issuing a new Security, pay such Security without surrender thereof,
except that any mutilated security shall be surrendered to the Security Registrar for cancellation.
Upon the issuance of any new Security under this Section, the Company may require the payment
by the respective Holder 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
Security Registrar) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and 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 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless 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 Person or
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 and the Paying Agent in writing of the amount of
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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 Paying Agent
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 Paying Agent 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 Company 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
and the Paying Agent of the notice of the proposed payment. The Company shall promptly
notify the Trustee and the Paying Agent of such Special Record Date and, in the name and at
the expense of the Company, the Paying Agent shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his or her address as it
appears in the Security Register, 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 and the Paying Agent of
the proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Paying Agent.
Subject to the foregoing provisions of this Section, 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,
the Security Registrar and any agent of the Company, the Trustee or the Security Registrar 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)
interest on such Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee, the Security Registrar
nor any agent of the Company,
the Trustee or the Security Registrar 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, the Security Registrar or any agent of the Company, the Trustee
or the Security Registrar, from giving effect to any written
certification, proxy
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or other authorization furnished by a Depositary or impair, as between a Depositary and
holders of beneficial interests in any Global Security, the operation of customary practices
governing the exercise of the rights of the Depositary 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
Security Registrar, be delivered to the Security Registrar and shall be promptly cancelled by it.
The Company may at any time deliver to the Security Registrar for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Security Registrar (or to any other Person for delivery to the
Security Registrar) for cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the
Security Registrar. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Security Registrar shall be destroyed.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request 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, upon receipt of such Company Request and at the sole expense of the Company,
shall execute instruments prepared by the Company and reasonably acceptable to the Trustee
acknowledging satisfaction and discharge of this Indenture, which instruments shall be reasonably
requested by the Company, when
(1) either
(i) all Securities theretofore authenticated and delivered (other than (A)
Securities which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (B) 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 Security Registrar for cancellation; or
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(ii) all such Securities not theretofore delivered to the Security Registrar
for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within one
year, or
(C) have been 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 sole expense, of the Company,
and the Company, in the case of (A), (B) or (C) 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 indebtedness on such Securities not
theretofore delivered to the Security Registrar 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, the obligations of the
Company to the Trustee, the Paying Agent, the Authentication Agent and the Security Registrar
(acting in any capacity under this Indenture) under Section 607, and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the obligations of the Trustee and the Paying
Agent under 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.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of any 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)
unless it is specifically deleted or modified in the supplemental indenture, if any, or Officers
Certificate, if any, under which such series of Securities is issued:
(1) default in the payment of any installment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a period of 30
days or more; or
(2) default in the payment of all or any part of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when, as and if due by the
terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture or any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the benefit of series
of Securities other than that series), and continuance of such default or breach for a
period of 60 days after there has been given a written notice, 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 Outstanding Securities of that series, specifying such
default or breach and requiring it to be remedied and stating that such notice is a Notice
of Default hereunder; or
(5) default under any mortgage, indenture (including this Indenture) or instrument
under which there is issued, or which secures or evidences, any indebtedness for borrowed
money of the Company or any Restricted Subsidiary now existing or hereinafter created, which
default shall constitute a failure to pay principal of such indebtedness in an amount
exceeding $50,000,000 when due and payable (other than as a result of acceleration), after
expiration of any applicable grace period with respect thereto, or shall have resulted in an
aggregate principal amount of such indebtedness exceeding $50,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged or such acceleration having been
rescinded or annulled within a period of 30 days after there has been given a written
notice, 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, specifying
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such default with respect to the other indebtedness and requiring the Company to
cause such indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a Notice of Default hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days;
or
(7) the commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or the consent
by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided in the supplemental indenture, if any, or
Officers Certificate, if any, with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee and the Paying Agent if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due
and payable.
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 provided, the Holders of a
majority in
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principal amount of the Outstanding Securities of that series, 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 Paying Agent a sum sufficient to pay
(i) all overdue interest on all Securities of that series,
(ii) 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,
(iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee or the Paying Agent hereunder and
the reasonable compensation, expenses, disbursements and advances of the Trustee,
the Paying Agent, the Security Registrar, the Authentication Agent and their
respective agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of 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.
Upon receipt by the Trustee of any declaration of acceleration, or rescission and annulment
thereof, with respect to Securities of a series all or part of which is represented by a Global
Security, the Trustee shall establish a record date for determining Holders of Outstanding
Securities of such series entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at the close of business on the day the
Trustee receives such declaration of acceleration, or rescission and annulment, as the case may be.
The Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such declaration of acceleration, or rescission and annulment, as the case may
be, whether or not such Holders remain Holders after such record date; provided, that
unless such declaration of acceleration, or rescission and annulment, as the case may be, shall
have become effective by virtue of the requisite percentage having been obtained prior to the day
which is 90 days after such record date, such declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new declaration of
acceleration, or rescission or annulment thereof, as the case may be, that is identical to a
declaration of acceleration, or rescission or annulment thereof,
which has been cancelled pursuant
to the proviso to the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on any of the
Securities of such series when such interest becomes due and payable and such default
continues for a period of 30 days,
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when and if the same becomes due pursuant to the terms of any Security,
the Company will, upon demand of the Trustee, pay to the Paying Agent, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for principal,
including any sinking fund payment or analogous obligations (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 prescribed
therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and the Paying Agent and their respective agents and
counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
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 Securities of such 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 the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of
the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
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principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest, if any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents, advisors and counsel) and of the Holders allowed in
such judicial proceeding, and
(2) 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, advisors and counsel, and any other amounts
due the Trustee under Section 607.
Nothing herein contained 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.
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 be paid
and applied as provided in Section 506.
SECTION 506. Application of Money Collected.
Any money and property collected by the Trustee pursuant to this Article 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, the Paying Agent, the Security
Registrar and the Authentication Agent under Section 607;
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
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kind, according to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: If any funds shall be left remaining, to the Company.
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 Holder 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 Outstanding Securities
of that series 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 indemnity reasonably satisfactory to the
Trustee 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
Outstanding Securities of that series;
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.
|
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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) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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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 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. To the extent permitted by applicable law, 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.
To the extent permitted by applicable law, no delay or omission of the Trustee or of any
Holder of any Securities 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 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, in accordance with the terms of this Indenture.
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.
Upon receipt by the Trustee of any purported direction with respect to Securities of a series
all or part of which is represented by a Global Security, the Trustee shall establish a record date
for determining Holders of Outstanding Securities of such series entitled to join in such
direction, which record date shall be at the close of business on the day the Trustee receives
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such
direction. The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided that, unless such majority in principal amount shall have
been obtained prior to the day which is 90 days after such record date, such direction shall
automatically and without further action by any Holder be cancelled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new direction identical to a direction which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 512.
SECTION 513. Waiver of Past Defaults.
By written instruction delivered to the Company and the Trustee, 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.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders remain Holders after such
record date; provided that, unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be cancelled and of no further
effect.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in the
aggregate more
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than 10% in principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
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
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.
(1) Except during the continuance of an Event of Default actually known to a Responsible
Officer of the Trustee,
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(2) In case an Event of Default has occurred and is continuing and is actually known to a
Responsible Officer of the Trustee, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own affairs.
(3) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that
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(i) this Subsection shall not be construed to limit the effect of Subsection (1) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series, determined as provided in
Section 512; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any 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.
(4) 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.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such default hereunder
actually known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or in the payment of
any sinking fund
installment with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities of such series. For
the purpose of this Section, the term default means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of such series. The
Trustee shall not be charged with notice of an Event of Default or default without receiving a
notice or actual knowledge of such occurrence.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) 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;
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(2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order or as otherwise expressly provided herein
and any resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) 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, request and rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from liability in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) 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 security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) 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 to
examine the books, records and premises of the Company, personally or by agent or attorney;
(7) 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;
(8) in no event shall the Trustee, its directors, officers, agents or employees be
responsible or liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless of the form
of action; and
(9) the rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
Paying Agent and Security Registrar.
Prior to taking any action under this Indenture, the Trustee will be entitled to
indemnification satisfactory to it in its sole discretion against all losses, liabilities, fees and
expenses caused by taking or not taking such action in accordance with this Indenture.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee, the Paying
Agent, the Security Registrar and the Authentication Agent assume no responsibility for their
correctness. The Trustee, the Paying Agent, the Security Registrar and the Authentication Agent
make no representations as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee, the Paying Agent, the Security Registrar and the Authentication Agent shall not be
accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, 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, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or the Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. Neither the Paying Agent nor the Trustee shall
be under any liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee, the Paying Agent, the Security Registrar and the
Authentication Agent from time to time such compensation as shall be agreed to in writing
between the Company and the Trustee for all services rendered by the Trustee, the Paying
Agent, the Security Registrar and the Authentication Agent 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, advisors and counsel), except
any such expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee, the Paying Agent, the Security Registrar and the
Authentication Agent, their affiliates, officers, directors, employees and agents for, and
to hold each of them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and expenses of
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defending themselves against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
The provisions of this Section 607 shall survive any defeasance of the Securities in
accordance with Article Thirteen and the resignation and removal of the Trustee in accordance with
Section 610 or the removal of the Paying Agent, Securities Registrar or Authentication Agent.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 subject to supervision or examination by Federal or State
authority. If such corporation 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, the combined capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. No obligor
upon the Securities or Person directly or indirectly controlling, controlled by, or under common
control with such obligor shall serve as Trustee upon the Securities. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(2) 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 the instrument of acceptance by a successor
Trustee required by 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.
(3) 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 Outstanding Securities of such series,
delivered to the Trustee and to the Company.
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(4) If at any time:
(i) 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
(ii) 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
(iii) 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, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) 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 with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(5) 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 of 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 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 Outstanding Securities of such series 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 with
respect to the Securities of such series.
(6) 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 by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and addresses appear in the
Security Register. 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.
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(7) Notwithstanding replacement of the Trustee pursuant to Section 610, the Companys
obligations under Section 607 shall continue for the benefit of the retiring Trustee and the
Company shall pay to any replaced or removed Trustee all amounts owed under Section 607 upon such
replacement or removal.
SECTION 611. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such 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, at the expense of the Company, duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or 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 (i)
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, (ii) 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 (iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and 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 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, at the expense of the Company, 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.
(3) 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
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Trustee all
such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may
be.
(4) 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.
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,
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.
(1) Subject to Subsection (2) of this Section, if the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to
a default, as defined in Subsection (3) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Securities and the holders
of other indenture securities, as defined in Subsection (3) of this Section:
(i) an amount equal to any and all reductions in the amount due and owing upon any
claim as such creditor in respect of principal or interest, effected after the beginning of
such three months period and valid as against the Company and its other creditors, except
any such reduction resulting from the receipt or disposition of any property described in
paragraph (ii) of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(ii) all property received by the Trustee in respect of any claims as such creditor,
either as security therefor, or in satisfaction or composition thereof, or otherwise, after
the beginning of such three months period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any
Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made
in cash, securities or other property in respect of claims filed
against the
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Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any
such claim, if such property was so held prior to the beginning of such three months
period;
(C) to realize, for its own account, but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security for any such claim, if such claim was
created after the beginning of such three months period and such property was received as
security therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in Subsection (3) of
this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the
release of any property held as security for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of
such three months period for property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and property held in such special
account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the
holders of other indenture securities in such manner that the Trustee, the Holders and the holders
of other indenture securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, the
same percentage of their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph, with respect to any
claim, the term dividends shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act
or applicable State law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceedings for reorganization is
pending shall have jurisdiction (i) to apportion among the
Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph, the funds and
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property held in such special account and proceeds thereof, or (ii) in lieu of such apportionment,
in whole or in part, to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such three months
period shall be subject to the provisions of this Subsection as though such resignation
or removal had not occurred. If any Trustee has resigned or been removed prior to the
beginning of such three months period, it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the
obligation to account, if such Trustee had continued as Trustee, occurred after the
beginning of such three months period; and
(ii) such receipt of property or reduction of claim occurred within three months after
such resignation or removal.
(2) There shall be excluded from the operation of Subsection (1) of this Section a creditor
relationship arising from:
(i) the ownership or acquisition of securities issued under any indenture, or any
security or securities having a maturity of one year or more at the time of acquisition by
the Trustee;
(ii) advances authorized by a receivership or bankruptcy court of competent
jurisdiction or by this Indenture, for the purpose of preserving any property which shall at
any time be subject to the lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(iii) disbursements made in the ordinary course of business in the capacity of trustee
under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(iv) an indebtedness created as a result of services rendered or premises rented; or an
indebtedness created as a result of goods or securities sold in a cash transaction, as
defined in Subsection (3) of this Section;
(v) the ownership of stock or of other securities of a corporation organized under the
provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
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(vi) the acquisition, ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (3) of this Section.
(3) For the purposes of this Section only:
(i) the term default means any failure to make payment in full of the principal of or
interest on any of the Securities or upon the other indenture securities when and as such
principal or interest becomes due and payable;
(ii) the term other indenture securities means securities upon which the Company is
an obligor outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions of this
Section, and (C) under which a default exists at the time of the apportionment of the funds
and property held in such special account;
(iii) the term cash transaction means any transaction in which full payment for goods
or securities sold is made within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(iv) the term self-liquidating paper means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation;
(v) the term Company means any obligor upon the Securities; and
(vi) the term Federal Bankruptcy Act means the Bankruptcy Act or Title 11 of the
United States Code.
SECTION 614. Appointment of Authentication Agent.
At any time when any of the Securities of one or more series remain outstanding, the Trustee
may appoint an Authentication Agent or Agents with respect to Securities of one or more series
which shall be authorized to act on behalf of the Trustee to authenticate Securities of such
series, and Securities so authenticated shall be entitled to the benefits hereof and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made herein to the authentication and delivery of Securities by the Trustee or the Trustees
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authentication Agent and a certificate of authentication
executed on behalf of the Trustee by an Authentication Agent. Each Authentication Agent shall be
acceptable to the Company and shall at all times be a corporation organized and doing business
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under the laws of the United States, any State thereof or the District of Columbia, authorized
under such laws to act as Authentication 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
Authentication 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, the
combined capital and surplus of such Authentication 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 Authentication Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authentication Agent shall resign immediately in the manner
and with the effect specified in this Section. The Authentication Agent shall initially be
Deutsche Bank Trust Company Americas.
Any corporation into which an Authentication 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 Authentication Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authentication Agent, shall continue to be an
Authentication Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authentication Agent.
An Authentication 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 Authentication Agent by
giving written notice thereof to such Authentication Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authentication
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authentication Agent which shall be acceptable to the Company and shall mail
notice of such appointment to each Holder of Securities of the series with respect to which such
Authentication Agent will serve. Any successor Authentication 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 Authentication Agent. No successor
Authentication Agent shall be appointed unless eligible under the provisions of this Section. The
provisions of Section 607 shall also apply to any Authentication Agent.
The Company agrees to pay to each Authentication Agent from time to time reasonable
compensation for its services under this Section. If the Authentication Agent bills the Trustee
for its services, the Company may either pay the Authentication Agent or provide funds to the
Trustee which the Trustee shall use to pay the Authentication Agent.
Pursuant to each appointment made under this Section, the Securities of each series covered by
such appointment may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the form (i) set forth on Exhibit A
or Exhibit B, as applicable, hereto for 2015 Notes and 2017 Notes or (ii) set forth in Section 203
for all other Securities.
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SECTION 615. Roles of Trustee.
The rights, privileges, protections, immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall be enforceable by the
Trustee in each of its capacities in which it may serve, each agent, custodian and other person
employed by it to act hereunder.
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
(1) either (i) not later than March 31 and September 30 in each year in the case of
Original Issue Discount Securities of any series which by their terms do not bear interest
prior to Maturity, or (ii) not more than 15 days after each Regular Record Date in the case
of Securities of any other series, a list, each in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of such series as of the
preceding March 15 or September 15 or as of such Regular Record Date, as the case may be;
and
(2) 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;
excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar in the event the Trustee becomes the Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(1) 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 in the event the Trustee becomes the Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(2) If three or more Holders (herein referred to as applicants) apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either
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(i) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 702(1), or
(ii) inform such applicants as to the approximate number of Holders whose names and
addresses appear in the information preserved at the time by the Trustee in accordance with
Section 702(1), and as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Holder whose name and
address appear in the information preserved at the time by the Trustee in accordance with Section
702(1) a copy of the form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(3) 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 the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(2), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(2).
SECTION 703. Reports by Trustee.
(1) Within 60 days after the first March 15 occurring subsequent to the initial issuance of
Securities hereunder and within 60 days after March 15 in each year thereafter, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the Security Register, a
brief report dated as of such March 15 with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(i) any change to its eligibility under Section 609 and its qualifications under
Section 608;
(ii) the creation of or any material change to a relationship specified in paragraphs
(1) through (10) of Section 310(b) of the Trust Indenture Act;
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(iii) the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities Outstanding for which it is Trustee on the date of
such report;
(iv) any change in the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee
in its individual capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(2)(ii), (iii), (iv) or (vi);
(v) any change to the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;
(vi) any additional issue of Securities which the Trustee has not previously reported;
and
(vii) any action taken by the Trustee in the performance of its duties hereunder which
it has not previously reported and which in its opinion materially affects the Securities,
except action in respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(2) The Trustee shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, a brief report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to Subsection (1) of this
Section (or if no such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of the Securities Outstanding for which it is Trustee at such time,
such report to be transmitted within 90 days after such time.
(3) 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 promptly notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
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(1) deliver to the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company is required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
Subsection (1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) furnish to the Trustee, within 120 days of the end of each fiscal year of the
Company, a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her knowledge of the
Companys compliance with all conditions and covenants under this Indenture, such compliance
to be determined without regard to any period of grace or requirement of notice provided
under this Indenture.
For the avoidance of doubt, delivery of reports, information and documents to the Trustee
under Section 704 is for informational purposes only and the Trustees receipt of the foregoing
shall not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Companys compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to, and entered into with, the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or, at the option of the Company, prior to)
all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if
a supplemental indenture is required in connection with such transaction, such supplemental
indenture complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of,
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the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURE
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 (when instructed by Company Order), 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 corporation 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; or
(3) to add any additional Events of Default; 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 change or eliminate any of the provisions of this Indenture, provided
that any such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(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(2);
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(9)
to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture,
provided such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(10) to provide for the issuance of the Exchange Securities or Additional Securities,
which shall have terms substantially identical in all material respects to the Initial
Securities, and which shall be treated, together with any outstanding Initial Securities, as
a single issue of securities.
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 each series affected by such supplemental indenture, 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 such
series under this Indenture; provided, however, that notwithstanding the foregoing,
with respect to the 2015 Notes (including any 2015 Exchange Notes) and the 2017 Notes (including
any 2017 Exchange Notes), the Holders of such Securities shall vote together as a single group for
purposes of this Section 902 (unless any such indenture or indentures supplemental hereto shall
affect (i) only the 2015 Notes or only the 2017 Notes, in which case any such indenture or
indentures supplemental hereto shall only require the consent of the holders of a majority in
principal amount of the Outstanding notes of the affected series or (ii) the 2015 Notes differently
than the terms of the 2017 Notes, in which case any such indenture or indentures supplemental
hereto shall require the consent of the holders of a majority in principal amount of the
Outstanding notes of each such series); and provided, further, 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 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 adversely
affect any right of repayment at the option of the Holder of any Security, or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation, or change the coin or currency in which any Security or any premium or the
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 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
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for in this Indenture or amend, change or modify any provision of this Indenture
affecting the ranking of any Outstanding Security in a manner adverse to the Holders of each
Outstanding Security affected thereby, or
(3) modify any of the provisions of this Section, Section 513 or Section 1011, 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 and Section 1011, or the deletion of
this proviso, in accordance with the requirements of Sections 611(2) 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.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that, unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to the date which is 90
days after such record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Officers Certificate and 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 Trustees 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, 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.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 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.
SECTION 907. Reservation of Rights of Trustee.
Notwithstanding anything to the contrary in Sections 901 or 902, no supplemental indenture or
modification or amendment to this Indenture which has the effect of (i) materially increasing the
obligations or duties of the Trustee hereunder, (ii) materially decreasing the compensation or
rights of the Trustee hereunder, or (iii) materially and adversely affecting the Trustee, shall
become effective without the prior consent of the Trustee.
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 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, subject to the
provisions of any modifications provided by the supplemental indenture, if any, or the Officers
Certificate, if any, under which such series of Securities is issued. In the event the Company is
required to pay Additional Interest with respect to a series of Securities, the Company
will provide written notice to the Trustee and the Paying Agent of the Companys obligation to
pay Additional Interest no later than 15 days prior to the next Interest Payment Date with respect
to such series, which notice shall set forth the amount of the Additional Interest to be paid by
the Company. The Trustee shall not at any time be under any duty or responsibility to any Holders
to determine whether the Additional Interest is payable and the amount thereof.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency 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
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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 Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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.
SECTION 1003. Money for Securities 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 but in any event within five (5) Business Days 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, prior to 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 the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly but in any event within five (5) Business Days 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal (and premium, if
any) or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
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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 Paying Agent shall also be
entitled to the benefits and protections afforded the Trustee under Article Six.
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. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the rights (charter and
statutory) and franchises of the Company and the Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right or franchise
if it shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and/or any Restricted Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Restricted Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any Restricted Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate proceedings.
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SECTION 1006. Restrictions upon Mortgage, Lien or Pledge of Property.
(1) The Company will not, nor will it permit any Restricted Subsidiary to, issue, assume or
guarantee any indebtedness for borrowed money secured by a mortgage, pledge, lien or other
encumbrance of any nature (mortgages, pledges, liens and other encumbrances being hereinafter
called mortgage or mortgages) upon any property of the Company or any Restricted Subsidiary, or
upon any shares of stock of any Restricted Subsidiary, without in any such case effectively
providing, concurrently with the issuance, assumption or guaranty of any such indebtedness for
borrowed money, that the Securities (together with, if the Company shall so determine, any other
indebtedness of the Company or such Restricted Subsidiary ranking equally with the Securities then
existing or thereafter created) shall be secured equally and ratably with such indebtedness for
borrowed money; provided, however, that the foregoing restrictions shall not apply
to:
(i) mortgages existing on August 1, 2006;
(ii) mortgages to secure the payment of all or part of the purchase price of such
property (other than property acquired for lease to a Person other than the Company or a
Restricted Subsidiary) upon the acquisition of such property by the Company or a Restricted
Subsidiary or to secure any indebtedness for borrowed money incurred or guaranteed by the
Company or a Restricted Subsidiary prior to, at the time of, or within 60 days after the
later of the acquisition, completion of construction or commencement of full operation of
such property, which indebtedness for borrowed money is incurred or guaranteed for the
purpose of financing all or any part of the purchase price thereof or construction of
improvements thereon; provided, however, that in the case of any such
acquisition, construction or improvement, the mortgage shall not apply to any property
theretofore owned by the Company or a Restricted Subsidiary, other than, in the case of
any such construction or improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located;
(iii) mortgages on the property of a Restricted Subsidiary on the date it became a
Restricted Subsidiary;
(iv) mortgages securing indebtedness for borrowed money of a Restricted Subsidiary
owing to the Company or to another Restricted Subsidiary;
(v) mortgages on property of a corporation existing at the time such corporation is
merged into or consolidated with the Company or a Restricted Subsidiary or at the time of a
purchase, lease or other acquisition of the properties of a corporation or firm as an
entirety or substantially as an entirety by the Company or a Restricted Subsidiary;
(vi) any replacement or successive replacement in whole or in part of any mortgage
referred to in the foregoing clauses (i) to (v), inclusive; provided,
however, that the principal amount of the indebtedness for borrowed money secured by
the mortgage shall not be increased and the principal repayment schedule and maturity of
such indebtedness shall not be extended and (A) such replacement shall be limited to all or
a part of the property which secured the mortgage so replaced (plus improvements and
construction
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on such property), or (B) if the property which secured the mortgage so
replaced has been destroyed, condemned or damaged and pursuant to the terms of the mortgage
other property has been substituted therefor, then such replacement shall be limited to all
or part of such substituted property;
(vii) liens created by or resulting from any litigation or other proceeding which is
being contested in good faith by appropriate proceedings, including liens arising out of
judgments or awards against the Company or any Restricted Subsidiary with respect to which
the Company or such Restricted Subsidiary is in good faith prosecuting an appeal or
proceedings for review; or liens incurred by the Company or any Restricted Subsidiary for
the purpose of obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Company or such Restricted Subsidiary is a party; or
(viii) liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings; landlords liens on property held under lease; and
any other liens or charges incidental to the conduct of the business of the Company or any
Restricted Subsidiary or the ownership of the property and assets of any of them which were
not incurred in connection with the borrowing of money or the obtaining of advances or
credit and which do not, in the opinion of the Company, materially impair the use of such
property in the operation of the business of the Company or such Restricted Subsidiary or
the value of such property for the purposes of such business.
(2) Notwithstanding the foregoing provisions of this Section 1006, the Company and any one or
more Restricted Subsidiaries may issue, assume or guarantee indebtedness for borrowed money secured
by mortgages which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all the other outstanding
indebtedness for borrowed money of the Company and its Restricted Subsidiaries secured by mortgages
which is not listed in clauses (i) through (viii) of subsection (1) of this Section 1006, does not
at the time exceed 121/2% of the Consolidated Net Tangible Assets of the Company as shown on the
audited consolidated financial statements of the Company as of the end of the fiscal year preceding
the date of determination.
(3) For the purposes of this Section 1006 only, Consolidated Net Tangible Assets means the
total amount of assets (less depreciation and valuation reserves and other reserves and items
deductible from the gross book value of specific asset amounts under generally accepted accounting
principles) which under generally accepted accounting principles would be included on a balance
sheet of the Company and its Restricted Subsidiaries, after deducting therefrom (i) all liability
items except indebtedness (whether incurred, assumed or guaranteed) for borrowed money maturing by
its terms more than one year from the date of creation thereof or which is extendible or renewable
at the sole option of the obligor in such manner that it may become payable more than one year from
the date of creation thereof, shareholders equity and reserves for deferred income taxes, (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case would be so included on such balance sheet, and (iii) amounts
invested in, or equity in the net assets of, Non-Restricted Subsidiaries.
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SECTION 1007. Restrictions on the Payment of Dividends.
No dividend whatever shall be paid or declared nor shall any distributions be made on any
capital stock of the Company (except in shares of, or warrants or rights to subscribe for or
purchase shares of, capital stock of the Company), nor shall any payment be made by the Company or
any Restricted Subsidiary to acquire or retire shares of such stock, at a time when an Event of
Default as defined in clauses (1), (2) or (3) of Section 501 has occurred and is continuing.
|
|
SECTION 1008. |
Restrictions on Permitting Restricted Subsidiaries to Become Non-Restricted
Subsidiaries and Non-Restricted Subsidiaries to Become Restricted Subsidiaries. |
(1) The Company will not permit any Restricted Subsidiary to be designated as or otherwise to
become a Non-Restricted Subsidiary unless immediately after such Restricted Subsidiary becomes a
Non-Restricted Subsidiary, it will not own, directly or indirectly, any capital stock or
indebtedness of any Restricted Subsidiary.
(2) The Company will not permit any Non-Restricted Subsidiary to be designated as or otherwise
to become a Restricted Subsidiary unless:
(i) such Non-Restricted Subsidiary is not a Subsidiary substantially all of the
physical properties of which are located, or substantially all of the business of which is
carried on, outside the United States of America, its territories and possessions and
Puerto Rico; and
(ii) immediately thereafter such Subsidiary has outstanding no mortgages in respect of
any of its assets except as would have been permitted by Section 1006 had such mortgages
been incurred immediately thereafter.
(3) Promptly after the adoption of any resolution by the Board of Directors designating a
Restricted Subsidiary as a Non-Restricted Subsidiary or a Non-Restricted Subsidiary as a Restricted
Subsidiary, a copy thereof certified by the Secretary or an Assistant Secretary of the Company
shall be filed with the Trustee, together with an Officers Certificate stating that the provisions
of this Section 1008 have been complied with in connection with such designation.
SECTION 1009. Restriction on Investments in Non-Restricted Subsidiaries.
The Company will not, nor will it permit any Restricted Subsidiary to, make any investment in,
or transfer any assets to, a Non-Restricted Subsidiary if immediately thereafter the Company would
be in breach of or in default in the performance of any covenant or warranty of the Company
contained in this Indenture.
SECTION 1010. Statement by Officers as to Default.
The Company will 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
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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 the Indenture, inclusive, 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 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1004 to 1009, inclusive, 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 Outstanding Securities of such series shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company in respect of any such term, provision or condition shall remain in full force and
effect.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive compliance with any term, provision or condition referred
to in the immediately preceding paragraph. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled to waive,
compliance with any such term, provision or condition, whether or not such Holders remain Holders
after such record date; provided that, unless such requisite percentage in principal amount
shall have been obtained prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder be cancelled and of
no further effect.
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.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In 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 tenor, if applicable, of the Securities to be
redeemed, and of the principal amount of Securities of such series 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.
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SECTION 1103. Selection by Security Registrar of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
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 Security Registrar, from the
Outstanding Securities of such series subject to such redemption and not previously called for
redemption, by such method as the Security Registrar 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 of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Security Registrar 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.
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 or her address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) the CUSIP numbers of the Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security or portion thereof to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
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Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Security Registrar in the name and at the
expense of the Company; provided, however, that the Company agrees to provide the
Security Registrar, in writing, any information the Security Registrar shall reasonably request for
purposes of sending such notice.
SECTION 1105. Deposit of Redemption Price.
Prior to 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 or portion thereof 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 for Securities of any series, 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, registered 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 Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and make available for delivery 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 Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered. If a Global
Security is so surrendered, such new Security so issued shall be a new Global Security.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article 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 to the Security Registrar 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 terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such Securities
have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Security Registrar 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 Security Registrar 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 30 days before each such sinking fund payment date the Security Registrar 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
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SECTION 1301. |
Applicability of Article; Companys Option to Effect Defeasance or Covenant
Defeasance. |
Unless otherwise provided pursuant to Section 301, this Article Thirteen shall be applicable
to the Securities of such series, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, elect to have either Section 1302 (if
applicable) or Section 1303 (if applicable) 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 Companys exercise of the above option applicable to this Section, 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 precedent set forth below are satisfied but
subject to satisfaction of the conditions subsequent set forth below (hereinafter, defeasance).
For this purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness 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 instruments
provided by the Company and acceptable to the Trustee acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged hereunder: (A) the rights
of Holders of Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments of the principal of
(and premium, if any) and interest on such Securities when such payments are due, (B) the Companys
obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties, immunities and
other provisions in respect of the Trustee, the Paying Agent, the Security Registrar and the
Authentication Agent hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303 with respect to the Securities of such series.
Following a defeasance, payment of the Securities of such series may not be accelerated because of
an Event of Default.
SECTION 1303. Covenant Defeasance.
Upon the Companys exercise of the above option applicable to this Section, the Company shall
be released from its obligations under Sections 1004 through 1009 (and any other Sections
applicable to such Securities that are determined pursuant to Section 301 to be subject to this
provision) and the occurrence of an Event of Default specified in Section 501(4) (insofar as it is
with respect to Sections 1004 through 1009 or any other Section applicable to such Securities that
are determined pursuant to Section 301 to be subject to this provision) or Section 501(5) shall be
deemed not to be an Event of Default with respect to the Outstanding Securities of such series on
and after the date the conditions precedent set forth below are satisfied
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but subject to satisfaction of the conditions subsequent set forth below (hereinafter,
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 Section, whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason
of any reference in any such Section 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 by reference to such other Section specified above
in this Section 1303.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically noted below, subsequent to
application of either Section 1302 or Section 1303 to the Outstanding Securities of such series:
(1) the Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609 who shall agree 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) money in an
amount, or (B) 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 (C) a combination
thereof, 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, (i) the principal of (and premium, if any) and
interest on the Outstanding Securities of such series to maturity or redemption, as the case
may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the due dates thereof. 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. For this purpose, U.S. Government Obligations means securities
that are (x) direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations 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, are 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 of 1933, as amended) 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
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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.
(2) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities of such series shall have occurred
and be continuing (A) on the date of such deposit or (B) insofar as subsections 501(6) and
(7) are concerned, at any time during the period ending on the 123rd 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) is a condition subsequent and shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) 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 or (B)
result in the trust arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any Securities of such
series then listed on any registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted.
(6) In the case of an election under Section 1302, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(7) In the case of an election under Section 1303, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(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.
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(9) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to
either the defeasance under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
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SECTION 1305. |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. |
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or Paying Agent (or other
qualifying trustee collectively, for purposes of this Section 1305, 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 Paying Agent (but not including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums
due and to become due thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee and the Paying Agent against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect thereof.
Anything herein 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 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 an equivalent
defeasance or covenant defeasance.
Anything herein to the contrary notwithstanding, if and to the extent the deposited money or
U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied by the Trustee
in accordance with this Section because of a court order or (ii) are for any reason insufficient in
amount, then the Companys obligations to pay principal of (and premium, if any) and interest on
the Securities of such series shall be reinstated to the extent necessary to cover the deficiency
on any due date for payment. In any case specified in clause (i), the Companys interest in the
deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated to the
extent the Companys payment obligations are reinstated.
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.
SECTION 1306. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions of this Indenture,
neither the Trustee nor the Paying Agent shall be charged with knowledge of the
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existence of any facts that would prohibit the making of any payment of moneys to or by the Trustee
or the Paying Agent, or the taking of any other action by the Trustee or the Paying Agent, unless
and until a Responsible Officer of the Trustee or the Paying Agent has actual knowledge or unless
same shall have received written notice thereof mailed or delivered to the Trustee at its Corporate
Trust Office or the Paying Agent, and such notice clearly references the Securities, the Company or
this Indenture, from the Company or any Holder; provided that if at least three Business
Days prior to the date upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal or interest on any Security)
the Trustee or the Paying Agent shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply the same to the
purpose for which they were received and shall not be affected by any notice to the contrary that
may be received by it within three Business Days prior to or on or after such date.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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INTERNATIONAL LEASE FINANCE CORPORATION
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By: |
/s/ Pamela S. Hendry
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Name: |
Pamela S. Hendry |
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Title: |
Senior Vice President & Treasurer |
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WILMINGTON TRUST FSB,
as Trustee
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By: |
/s/ Timothy P. Mowdy
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Name: |
Timothy P. Mowdy |
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Title: |
Vice President |
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Security Registrar and
Authentication Agent
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By: |
/s/
Wanda
Camacho |
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Name: |
Wanda
Camacho |
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Title: |
Vice President |
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By: |
/s/ Richard L. Buckwalter
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Name: |
Richard L. Buckwalter |
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Title: |
Director |
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APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES, EXCHANGE SECURITIES AND ANY OTHER ADDITIONAL
SECURITIES THAT ARE 2015 NOTES OR 2017 NOTES
The following provisions shall apply to Initial Securities, Exchange Securities and any other
Additional Securities that are 2015 Notes or 2017 Notes:
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix A the following terms shall have the meanings indicated
below:
Clearstream means Clearstream Banking, société anonyme, or any successor securities clearing
agency.
Definitive Security means a certificated Initial Security or Exchange Security (bearing the
Restricted Securities Legend if the transfer of such Security is restricted by applicable law) that
does not include the Global Securities Legend.
Depositary means, with respect to the Securities, The Depository Trust Company, its nominees
and their respective successors.
Exchange Offer means the offer by the Company, pursuant to the Registration Agreement, to
certain Holders of Initial Securities, to issue and deliver to such Holders, in exchange for their
Initial Securities, a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
Euroclear means the Euroclear Clearance System or any successor securities clearing agency.
Global Securities Legend means the legend set forth under that caption in the applicable
Exhibit to this Indenture.
Initial Purchasers means Banc of America Securities LLC, Citigroup Global Markets Inc.,
Credit Suisse Securities (USA) LLC , UBS Securities LLC, BNP Paribas Securities Corp., Daiwa
Securities America Inc., Mizuho Securities USA Inc., Scotia Capital (USA) Inc. and SG Americas
Securities, LLC, each party to the Purchase Agreement entered into in connection with the offer and
sale of the Securities.
Initial Securities means the Original Securities and any Additional Securities that are 2015
Notes or 2017 Notes that are Transfer Restricted Securities.
Purchase Agreement means the Purchase Agreement dated as of March 17, 2010, among the
Company and the Representatives on behalf of the several Initial Purchasers.
Appendix A-1
QIB means a qualified institutional buyer as defined in Rule 144A.
Registration Agreement means (a) the Registration Rights Agreement and (b) any other similar
registration rights agreement relating to Additional Securities.
Registration Default has the meaning set forth in the Registration Agreement.
Registration Rights Agreement means the Registration Rights Agreement dated as of March 22,
2010 among the Company and the Representatives on behalf of the several Initial Purchasers relating
to the Securities.
Regulation S means Regulation S under the Securities Act.
Regulation S Securities means all Initial Securities offered and sold outside the United
States in reliance on Regulation S.
Representatives means Banc of America Securities LLC, Citigroup Global Markets Inc., Credit
Suisse Securities (USA) LLC and UBS Securities LLC, acting on behalf of the several Initial
Purchasers.
Restricted Period, with respect to any Securities, means the period of 40 consecutive days
beginning on and including the later of (a) the day on which such Securities are first offered to
persons other than distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Company to the Trustee, and (b)
the Issue Date, and with respect to any Additional Securities that are Transfer Restricted
Securities, it means the comparable period of 40 consecutive days.
Restricted Securities Legend means the legend set forth in Section 2.2(f)(i) herein.
Rule 144A means Rule 144A under the Securities Act.
Rule 144A Securities means all Initial Securities offered and sold to QIBs in reliance on
Rule 144A.
Securities Custodian means the custodian with respect to a Global Security (as appointed by
the Depositary) or any successor person thereto, who shall initially be the Trustee.
Shelf Registration Statement means a registration statement filed by the Company in
connection with the offer and sale of Initial Securities pursuant to the Registration Agreement.
Transfer Restricted Definitive Securities means Definitive Securities that bear or are
required to bear or are subject to the Restricted Securities Legend.
Transfer Restricted Global Securities means Global Securities bearing the Restricted
Securities Legend.
Appendix A-2
Transfer Restricted Securities means Transfer Restricted Definitive Securities and Transfer
Restricted Global Securities.
Unrestricted Definitive Security means Definitive Securities and any other Securities that
are not required to bear, or are not subject to, the Restricted Securities Legend.
Unrestricted Global Security means a Global Security that does not bear the Restricted
Securities Legend.
1.2 Other Definitions.
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Term: |
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Defined in Section: |
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Agent Members
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2.1 |
(b) |
Regulation S Global Securities
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2.1 |
(b) |
Rule 144A Global Securities
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2.1 |
(b) |
2. The Securities.
2.1 Form and Dating; Global Securities.
(a) The Initial Securities will be (i) offered and sold by the Company pursuant to the
Purchase Agreement and (ii) resold initially only to (1) QIBs in reliance on Rule 144A and (2)
Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S. Such
Initial Securities may thereafter be transferred to, among others, QIBs and purchasers in reliance
on Regulation S.
(b) Global Securities. (i) Rule 144A Securities initially shall be represented by one
or more Global Securities in definitive, fully registered, global form without interest coupons
(collectively, the Rule 144A Global Securities). Regulation S Securities initially shall be
represented by one or more Global Securities in fully registered, global form without interest
coupons (collectively, the Regulation S Global Securities). Such Global Securities shall bear
the Global Security Legend. Such Global Securities initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, in each case for credit to an account of an
Agent Member, (ii) be delivered to the Security Registrar as custodian for such Depositary and
(iii) bear the Restricted Securities Legend.
Members of, or direct or indirect participants in, the Depositary, Euroclear or
Clearstream (Agent Members) shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary or under the Global Securities. The
Depositary may be treated by the Company, the Trustee, the Security Registrar and any agent
of the Company, the Trustee or the Security Registrar as the absolute owner of the Global
Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company, the Trustee or the Security
Registrar from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary, Euroclear or Clearstream,
as the case may be, and their respective Agent Members, the
Appendix A-3
operation of customary practices
governing the exercise of the rights of a Holder of any Security.
(ii) Transfers of Global Securities shall be limited to transfer in whole, but not in
part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in the Global Securities may be transferred or exchanged for Definitive
Securities only in accordance with the applicable rules and procedures of the Depositary,
Euroclear or Clearstream, as the case may be, and the provisions of Section 2.2. In
addition, a Global Security shall be exchangeable for Definitive Securities if (i) the
Depositary (x) notifies the Company that it is unwilling or unable to continue as depository
for such Global Security and the Company thereupon fails to appoint a successor depository
or (y) has ceased to be a clearing agency registered under the Exchange Act, or (ii) there shall have occurred and be continuing an Event of Default
with respect to such Global Security. In all cases, Definitive Securities delivered in
exchange for any Global Security or beneficial interests therein shall be registered in the
names, and issued in any approved denominations, requested by or on behalf of the
Depositary, in accordance with its customary procedures.
(iii) In connection with the transfer of a Global Security as an entirety to beneficial
owners pursuant to subsection (i) of this Section 2.1(b), such Global Security shall be
deemed to be surrendered to the Security Registrar for cancellation, and the Company shall
execute, and the Authentication Agent shall authenticate and make available for delivery, to
each beneficial owner identified by the Depositary in writing in exchange for its beneficial
interest in such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations.
(iv) Any Transfer Restricted Security delivered in exchange for an interest in a Global
Security pursuant to Section 2.2 shall, except as otherwise provided in Section 2.2, bear
the Restricted Securities Legend.
(v) Notwithstanding the foregoing, through the Restricted Period, a beneficial interest
in such Regulation S Global Security may be held only through Euroclear or Clearstream
unless delivery is made in accordance with the applicable provisions of Section 2.2.
(vi) The Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members,
to take any action which a Holder is entitled to take under this Indenture or the
Securities.
2.2 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may not be
transferred as a whole except as set forth in Section 2.1(b). Global Securities will not be
exchanged by the Company for Definitive Securities except under the circumstances described in
Section 2.1(b)(ii). Global Securities also may be exchanged or replaced, in whole or in part, as
Appendix A-4
provided in Sections 304 and 306 of this Indenture. Beneficial interests in a Global Security may
be transferred and exchanged as provided in Section 2.2(b) or 2.2(g).
(b) Transfer and Exchange of Beneficial Interests in Global Securities. The transfer
and exchange of beneficial interests in the Global Securities shall be effected through the
Depositary, in accordance with the provisions of this Indenture and the applicable rules and
procedures of the Depositary. Beneficial interests in Transfer Restricted Global Securities shall
be subject to restrictions on transfer comparable to those set forth herein to the extent required
by the Securities Act. Transfers and exchanges of beneficial interests in the Global Securities
also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Security. Beneficial
interests in any Transfer Restricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Transfer Restricted Global
Security in accordance with the transfer restrictions set forth in the Restricted Securities
Legend; provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in a Regulation S Global Security may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). A beneficial interest in an Unrestricted Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security. No written orders or instructions shall be
required to be delivered to the Security Registrar to effect the transfers described in this
Section 2.2(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global
Securities. In connection with all transfers and exchanges of beneficial interests in
any Global Security that is not subject to Section 2.2(b)(i), the transferor of such
beneficial interest must deliver to the Security Registrar (1) a written order from an Agent
Member given to the Depositary in accordance with the applicable rules and procedures of the
Depositary directing the Depositary to credit or cause to be credited a beneficial interest
in another Global Security in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the applicable rules and
procedures of the Depositary containing information regarding the Agent Member account to be
credited with such increase; provided that in no event shall a beneficial interest
in a Global Security be credited, or an Unrestricted Definitive Security be issued, to a
Person who is an affiliate (as defined in Rule 144) of the Company. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests in any Global
Security that is not subject to Section 2.2(b)(i) and the Securities or otherwise applicable
under the Securities Act, the Security Registrar shall adjust the principal amount of the
relevant Global Security pursuant to Section 2.2(g).
(iii) Transfer of Beneficial Interests to Another Transfer Restricted Global
Security. A beneficial interest in a Transfer Restricted Global Security may be
transferred to a Person who takes delivery thereof in the form of a beneficial interest in
another Transfer Restricted Global Security if the transfer complies with the requirements
of Section 2.2(b)(ii) above and the Security Registrar receives the following:
Appendix A-5
(A) if the transferee will take delivery in the form of a beneficial interest
in a Rule 144A Global Security, then the transferor must deliver a certificate in
the form attached to the applicable Security; and
(B) if the transferee will take delivery in the form of a beneficial interest
in a Regulation S Global Security, then the transferor must deliver a certificate in
the form attached to the applicable Security.
(iv) Transfer and Exchange of Beneficial Interests in a Transfer Restricted Global
Security for Beneficial Interests in an Unrestricted Global Security. A beneficial
interest in a Transfer Restricted Global Security may be exchanged by any holder thereof for
a beneficial interest in an Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of Section 2.2(b)(ii)
above and the Security Registrar receives the following:
(A) if the holder of such beneficial interest in a Transfer Restricted Global
Security proposes to exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Security, a certificate from such holder in the form attached
to the applicable Security; or
(B) if the holder of such beneficial interest in a Transfer Restricted Global
Security proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security, a certificate from such holder in the form attached to the applicable
Security,
and, in each such case, if the Security Registrar so requests or if the applicable rules and
procedures of the Depositary, Euroclear or Clearstream, as applicable, so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Securities Legend are no
longer required in order to maintain compliance with the Securities Act. If any such
transfer or exchange is effected pursuant to this subparagraph (iv) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and, upon
receipt of an written order of the Company in the form of an Officers Certificate in
accordance with Section 2.01, the Authentication Agent shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred or exchanged pursuant to this
subparagraph (iv).
(v) Transfer and Exchange of Beneficial Interests in an Unrestricted Global
Security for Beneficial Interests in a Transfer Restricted Global Security. Beneficial
interests in an Unrestricted Global Security cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Transfer
Restricted Global Security.
Appendix A-6
(c) Transfer and Exchange of Beneficial Interests in Global Securities for Definitive
Securities. A beneficial interest in a Global Security may not be exchanged for a Definitive
Security except under the circumstances described in Section 2.1(b)(ii). A beneficial interest in
a Global Security may not be transferred to a Person who takes delivery thereof in the form of a
Definitive Security except under the circumstances described in Section 2.1(b)(ii).
(d) Transfer and Exchange of Definitive Securities for Beneficial Interests in Global
Securities. Transfers and exchanges of Definitive Securities for beneficial interests in
Global Securities shall require compliance with either subparagraph (i), (ii) or (iii) below, as
applicable:
(i) Transfer Restricted Definitive Securities to Beneficial Interests in Transfer
Restricted Global Securities. If any Holder of a Transfer Restricted Definitive
Security proposes to exchange such Transfer Restricted Definitive Security for a beneficial
interest in a Transfer Restricted Global Security or to transfer such Transfer Restricted
Security to a Person who takes delivery thereof in the form of a beneficial interest in a
Transfer Restricted Global Security, then, upon receipt by the Security Registrar of the
following documentation:
(A) if the Holder of such Transfer Restricted Definitive Security proposes to
exchange such Transfer Restricted Definitive Security for a beneficial interest in a
Transfer Restricted Global Security, a certificate from such Holder in the form
attached to the applicable Security;
(B) if such Transfer Restricted Definitive Security is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a certificate from such
Holder in the form attached to the applicable Security;
(C) if such Transfer Restricted Security is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate from such Holder in the form attached to the
applicable Security;
(D) if such Transfer Restricted Definitive Security is being transferred
pursuant to an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate from such Holder in the
form attached to the applicable Security; or
(E) if such Transfer Restricted Definitive Security is being transferred to the
Company or a Subsidiary thereof, a certificate from such Holder in the form attached
to the applicable Security;
the Security Registrar shall cancel the Transfer Restricted Definitive Security, and
increase or cause to be increased the aggregate principal amount of the appropriate Transfer
Restricted Global Security.
(ii) Transfer Restricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of a Transfer Restricted
Definitive Security may
Appendix A-7
exchange such Transfer Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security or transfer such Transfer Restricted Definitive Security to a
Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security only if the Security Registrar receives the following:
(A) if the Holder of such Transfer Restricted Definitive Security proposes to
exchange such Transfer Restricted Definitive Security for a beneficial interest in
an Unrestricted Global Security, a certificate from such Holder in the form attached
to the applicable Security; or
(B) if the Holder of such Transfer Restricted Definitive Security proposes to
transfer such Transfer Restricted Definitive Security to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security, a certificate from such Holder in the form attached to the applicable
Security,
and, in each such case, if the Security Registrar so requests or if the applicable rules and
procedures of the Depositary, Euroclear or Clearstream, as applicable, so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Securities Legend are no
longer required in order to maintain compliance with the Securities Act. Upon satisfaction
of the conditions of this subparagraph (ii), the Security Registrar shall cancel the
Transfer Restricted Definitive Securities and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Security. If any such transfer or
exchange is effected pursuant to this subparagraph (ii) at a time when an Unrestricted
Global Security has not yet been issued, the Company shall issue and, upon receipt of an
written order of the Company in the form of an Officers Certificate, the Authentication
Agent shall authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the aggregate principal amount of Transfer Restricted Definitive
Securities transferred or exchanged pursuant to this subparagraph (ii).
(iii) Unrestricted Definitive Securities to Beneficial Interests in Unrestricted
Global Securities. A Holder of an Unrestricted Definitive Security may exchange such
Unrestricted Definitive Security for a beneficial interest in an Unrestricted Global
Security or transfer such Unrestricted Definitive Security to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security at any time.
Upon receipt of a request for such an exchange or transfer, the Security Registrar shall
cancel the applicable Unrestricted Definitive Security and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Securities. If any such
transfer or exchange is effected pursuant to this subparagraph (iii) at a time when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of an written order of the Company in the form of an
Officers Certificate, the Authentication Agent shall authenticate one or more Unrestricted
Global Securities in an aggregate principal amount equal to the aggregate principal amount
of Unrestricted Definitive Securities transferred or exchanged pursuant to this subparagraph
(iii).
Appendix A-8
(iv) Unrestricted Definitive Securities to Beneficial Interests in Transfer
Restricted Global Securities. An Unrestricted Definitive Security cannot be exchanged
for, or transferred to a Person who takes delivery thereof in the form of, a beneficial
interest in a Transfer Restricted Global Security.
(e) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon
request by a Holder of Definitive Securities and such Holders compliance with the provisions of
this Section 2.2(e), the Security Registrar shall register the transfer or exchange of Definitive
Securities. Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Security Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the Security Registrar
duly executed by such Holder or by its attorney duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.2(e).
(i) Transfer Restricted Securities to Transfer Restricted Definitive
Securities. A Transfer Restricted Definitive Security may be transferred to and
registered in the name of a Person who takes delivery thereof in the form of a Transfer
Restricted Definitive Security if the Security Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form attached to the
applicable Security;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904 under the
Securities Act, then the transferor must deliver a certificate in the form attached
to the applicable Security;
(C) if the transfer will be made pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the Securities
Act, a certificate in the form attached to the applicable Security; and
(D) if such transfer will be made to the Company or a Subsidiary thereof, a
certificate in the form attached to the applicable Security.
(ii) Transfer Restricted Definitive Securities to Unrestricted Definitive
Securities. Any Transfer Restricted Definitive Security may be exchanged by the Holder
thereof for an Unrestricted Definitive Security or transferred to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Security if the Security
Registrar receives the following:
(1) if the Holder of such Transfer Restricted Definitive Security proposes to
exchange such Transfer Restricted Definitive Security for an Unrestricted Definitive
Security, a certificate from such Holder in the form attached to the applicable
Security; or
(2) if the Holder of such Transfer Restricted Definitive Security proposes to
transfer such Security to a Person who shall take delivery thereof in
the
Appendix A-9
form of an
Unrestricted Definitive Security, a certificate from such Holder in the form attached to
the applicable Security,
and, in each such case, if the Security Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Restricted Securities Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted Definitive Securities.
A Holder of an Unrestricted Definitive Security may transfer such Unrestricted Definitive
Securities to a Person who takes delivery thereof in the form of an Unrestricted Definitive
Security at any time. Upon receipt of a request to register such a transfer, the Security
Registrar shall register the Unrestricted Definitive Securities pursuant to the instructions
from the Holder thereof.
(iv) Unrestricted Definitive Securities to Transfer Restricted Definitive
Securities. An Unrestricted Definitive Security cannot be exchanged for, or transferred
to a Person who takes delivery thereof in the form of, a Transfer Restricted Definitive
Security.
(f) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) or (iv), each Security
certificate evidencing the Global Securities and the Definitive Securities (and all Securities
issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the
following form (each defined term in the legend being defined as such for purposes of the legend
only):
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE ''SECURITIES ACT), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE
Appendix A-10
THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED
HEREBY.
Each Definitive Security shall bear the following additional legends:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR
AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Each Security issued hereunder that has more than a de minimis amount of original issue discount
for U.S. Federal Income Tax purposes shall bear a legend in substantially the following form:
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271
ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT
OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH SECURITIES BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING
ADDRESS: INTERNATIONAL LEASE FINANCE CORPORATION, 10250 CONSTELLATION BLVD., SUITE
3400, LOS ANGELES, CALIFORNIA ATTENTION: SENIOR VICE PRESIDENT FINANCE.
(ii) Upon any sale or transfer of a Transfer Restricted Security that is a Definitive
Security, the Security Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted Security if the Holder
certifies in writing to the Security Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Initial
Security).
Appendix A-11
(iii) After a transfer of any Initial Securities during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial Securities, all requirements pertaining
to the Restricted Securities Legend on such Initial Securities shall cease to apply and the
requirements that any such Initial Securities be issued in global form shall continue to apply.
(iv) Upon the consummation of a Exchange Offer with respect to the Initial Securities pursuant
to which Holders of such Initial Securities are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to Initial Securities that Initial Securities be
issued in global form shall continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that exchange such Initial Securities in
such Exchange Offer.
(v) Any Additional Securities sold in a registered offering shall not be required to bear the
Restricted Securities Legend.
(g) Cancellation or Adjustment of Global Security. At such time as all beneficial
interests in a particular Global Security have been exchanged for Definitive Securities or a
particular Global Security has been redeemed, repurchased or canceled in whole and not in part,
each such Global Security
shall be returned to or retained and canceled by the Security Registrar in accordance with
Section 309 of this Indenture. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Security or for Definitive Securities, the
principal amount of Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Security Registrar or by the
Depositary, at the direction of the Security Registrar, to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Security, such other Global Security
shall be increased accordingly and an endorsement shall be made on such Global Security by the
Security Registrar or by the Depositary, at the direction of the Security Registrar, to reflect
such increase.
(h) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the
Authentication Agent shall authenticate Definitive Securities and Global Securities at the
Companys request.
(ii) No service charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax, assessments or similar
governmental charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchanges pursuant to Sections 906 or 1107
of this Indenture).
(iii) Prior to the due presentation for registration of transfer of any Security, the Company,
the Trustee, a Paying Agent or the Security Registrar may deem and treat the Person in whose name a
Security is registered as the absolute owner of such Security for the purpose of receiving payment
of principal of and interest on such Security and for all other purposes
Appendix A-12
whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, a Paying Agent or the Security
Registrar shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or exchange.
(i) No Obligation of the Trustee or the Security Registrar.
(i) Neither the Trustee nor the Security Registrar shall have any responsibility or obligation
to any beneficial owner of a Global Security, a member of, or a participant in, the Depositary or
any other Person with respect to the accuracy of the records of the Depositary or its nominee or of
any participant or member thereof, with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or other Person (other than
the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of
any amount, under or with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to the Holders under the Securities shall be given or
made only to the registered Holders (which shall be the Depositary or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security shall be exercised only
through the Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee and the Security Registrar may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members, participants and any
beneficial owners.
(ii) Neither the Trustee nor the Security Registrar shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security
(including any transfers between or among Depositary participants, members or beneficial owners in
any Global Security) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by, the terms of
this Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
(j) Transfers of Securities Held by Affiliates.
Notwithstanding anything to the contrary in this Section 2.2 any certificate
(i) evidencing a Security that has been transferred to an affiliate (as
defined in Rule 405 of the Securities Act) of the Company, as evidenced by a
notation on the certificate of transfer or certificate of exchange for such
transfer or in the representation letter delivered in respect thereof, or (ii)
evidencing a Security that has been acquired from an affiliate (other than by
an affiliate) in a transaction or a chain of transactions not involving any
public offering, as evidenced by a notation on the certificate of transfer or
certificate of exchange for such transfer or in the representation letter
delivered in respect thereof, shall, until one year after the last date on
which either the Company or any affiliate of the Company was an owner of such
Security, in each case, be in the form of a permanent Definitive Security and
bear the Restricted Securities Legend subject to the restrictions in this
Section 2.2. The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to this Section
2.2(j). The Company, at its sole cost and expense, shall have the right to
Appendix A-13
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable advance
written notice to the Security Registrar.
Appendix A-14
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE SECURITIES ACT), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION
Ex. A-1
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR
(d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A)
ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144
FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH RESISTRAR MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Security issued hereunder that has more than a de minimis amount of original issue
discount for U.S. Federal Income Tax purposes shall bear a legend in substantially the
following form:
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL
ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH SECURITIES BY SUBMITTING A
WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS: INTERNATIONAL
LEASE FINANCE CORPORATION, 10250 CONSTELLATION BLVD., SUITE 3400, LOS ANGELES, CALIFORNIA
ATTENTION: SENIOR VICE PRESIDENT FINANCE.
Ex. A-2
[FORM OF INITIAL SECURITY]
[ ]% Senior Note due 20[ ]
CUSIP No. [ ]
ISIN No. [ ]
INTERNATIONAL LEASE FINANCE CORPORATION, a California corporation, promises to pay to
[ ], or registered assigns, the principal sum [of Dollars] [listed on the
Schedule of Increases or Decreases in Global Security attached hereto]1 on
[ ], 20[ ].
Interest Payment Dates: [ ] and [ ].
Record Dates: [ ] and [ ].
Additional provisions of this Security are set forth on the other side of this Security.
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1 |
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Use the Schedule of Increases and Decreases language if Security is in Global Form. |
Ex. A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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INTERNATIONAL LEASE FINANCE CORPORATION
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By: |
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Name: |
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Title: |
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Dated:
Ex. A-1
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CERTIFICATE OF
AUTHENTICATION
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Authentication Agent, certifies that this is
one of the Securities
referred to in the Indenture.
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By: |
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Authorized Signatory |
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Ex. A-1
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
[ ]% Senior Note due 20[ ]
(a) INTERNATIONAL LEASE FINANCE CORPORATION, a California corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being herein called the
Company), promises to pay interest on the principal amount of this Security at the rate per annum
shown above. The Company shall pay interest semiannually on [ ] and [ ] of each
year, commencing [September 15, 2010].2 Interest on the Securities shall
accrue from the most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from [March 22, 2010]3 until the
principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal at the rate borne by the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
(b) [Registration Rights Agreement. The Holder of this Security is entitled to the
benefits of a Registration Rights Agreement, dated as of March 22, 2010, among the Company and the
Representatives on behalf of the several Initial Purchasers.]4
The Company shall pay interest on the Securities (except defaulted interest) to the Persons
who are registered Holders at the close of business on the [ ] or [ ] next preceding
the interest payment date even if Securities are canceled after the record date and on or before
the interest payment date (whether or not a Business Day). The Holders must surrender Securities
to a Paying Agent to collect principal payments. The Company shall pay principal and interest in
money of the United States of America that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of the Securities represented by a Global Security
(including principal and interest) shall be made by the Paying Agent wire transfer of immediately
available funds to the accounts specified by Depositary. The Company will make all payments in
respect of a certificated Security (including principal and interest) at the office of each Paying
Agent, except that, at the option of the Company, payment of interest may be made by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of
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2 |
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Include such date with respect to Securities issued on the Issue Date. |
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Include such date with respect to Securities issued on the Issue Date. |
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Include with respect to Securities issued on the Issue Date. |
Ex. A-2
at least $1,000,000 aggregate principal amount of Securities, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date for payment (or such
other date as the Paying Agent may accept in its discretion).
3. |
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Paying Agent, Security Registrar and Authentication Agent |
Initially, Deutsche Bank Trust Company Americas will act as Paying Agent, Security Registrar
and Authentication Agent. The Company may appoint and change any Paying Agent or Security
Registrar without notice. The Company or any of its domestically incorporated wholly owned
Subsidiaries may act as Paying Agent or Security Registrar.
The Company issued the Securities under an Indenture dated as of March 22, 2010 (the
Indenture), among the Company, Wilmington Trust FSB, as trustee (the Trustee) and Deutsche Bank
Trust Company Americas, as Paying Agent, Security Registrar and Authentication Agent. The terms of
the Securities include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date
of the Indenture (the TIA). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture and
the TIA for a statement of such terms and provisions
The Securities are senior unsecured obligations of the Company.
The Securities are not subject to optional redemption.
The Securities are not subject to any sinking fund.
7. |
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Denominations; Transfer; Exchange |
The Securities are in registered form, without coupons, in denominations of $2,000 and any
integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange
of Securities in accordance with the Indenture. Upon any registration of transfer or exchange, the
Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or permitted by the
Indenture.
The registered Holder of this Security shall be treated as the owner of it for all purposes.
Ex. A-3
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and a Paying Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the Holders entitled to
the money must look to the Company for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
10. |
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Discharge and Defeasance |
Subject to certain conditions, the Company at any time may terminate some of or all its
obligations under the Securities and the Indenture if the Company deposits with the Trustee money
or U.S. Government Obligations for the payment of principal of and interest on the Securities to
redemption, or maturity, as the case may be.
The Indenture and the Securities may be amended or supplemented as provided in the Indenture.
12. |
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Defaults and Remedies |
The Events of Default relating to the Securities are defined in Section 501 of the Indenture.
Upon the occurrence of an Event of Default, the rights and obligations of the Company and the
Holders shall be as set forth in the Indenture.
13. |
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Trustee Dealings with the Company |
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
14. |
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No Recourse Against Others |
No director, officer, employee, incorporator or holder of any equity interests in the Company
or any direct or indirect parent corporation, as such, shall have any liability for any obligations
of the Company under the Securities, the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Securities by accepting a Security
waives and releases all such liability.
This Security shall not be valid until an authorized signatory of the Trustee (or an
authentication agent) manually signs the certificate of authentication on the other side of this
Security.
Ex. A-4
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
18. |
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CUSIP Numbers, ISINs and Common Codes |
The Company has caused CUSIP numbers and ISINs to be printed on the Securities and has
directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request and without charge
to the Holder a copy of the Indenture which has in it the text of this Security.
Ex. A-5
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably
appoint
agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Security.
Ex. A-6
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to
$__________
principal amount of Securities held in (check applicable
space) _____ book-entry or _____ definitive form by the undersigned.
The undersigned:
o |
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has requested the Trustee by written order to deliver in exchange for its beneficial
interest in the Global Security held by the Depositary a Security or Securities in
definitive, registered form of authorized denominations and an aggregate principal amount
equal to its beneficial interest in such Global Security (or the portion thereof indicated
above); and |
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check the following, if applicable: |
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o |
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is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix
A to the Indenture; or |
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o |
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is exchanging this Security in connection with an expected transfer to an
affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to
the Indenture. |
o |
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has requested the Trustee by written order to exchange or register the transfer of a
Security or Securities; and |
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check the following, if applicable: |
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o |
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is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix
A to the Indenture; or |
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o |
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the transferee is an affiliate of the Company as contemplated in Section
2.2(j) of Appendix A to the Indenture. |
In connection with any transfer of any of the Securities evidenced by this certificate occurring
prior to the expiration of the period referred to in Rule 144 under the Securities Act, the
undersigned confirms that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
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(1) |
o |
to the Company or Subsidiary thereof; or |
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(2) |
o |
to the Security Registrar for registration in the name of the Holder, without
transfer; or |
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(3) |
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pursuant to an effective registration statement under the Securities Act of
1933; or |
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(4) |
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inside the United States to a qualified institutional buyer (as defined in
Rule 144A under the Securities Act of 1933) that purchases for its own |
Ex. A-7
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account or for the account of a qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of 1933; or |
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(5) |
o |
outside the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 903 or Rule 904 under the
Securities Act of 1933 and such Security shall be held immediately after the transfer
through Euroclear or Clearstream until the expiration of the Restricted Period (as
defined in the Indenture); or |
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(6) |
o |
pursuant to another available exemption from registration provided by Rule 144
under the Securities Act of 1933. |
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Unless one of the boxes is checked, the Security Registrar will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other than the
registered Holder thereof; provided, however, that if box (5), (6) or (7) is
checked, the Security Registrar may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the Securities
Act of 1933. |
Ex. A-8
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigneds foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
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Dated:
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NOTICE:
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To be executed by an executive officer |
Ex. A-9
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_________. The following
increases or decreases in this Global Security have been made:
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Amount of decrease |
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in Principal Amount |
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Amount of increase in |
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Principal amount of this |
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Signature of authorized |
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Date of |
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of this Global |
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Principal Amount of |
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Global Security following |
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signatory of Trustee or |
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Exchange |
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Security |
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this Global Security |
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such decrease or increase |
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Securities Custodian |
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Ex. A-10
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Security issued hereunder that has more than a de minimis amount of original issue discount
for U.S. Federal Income Tax purposes shall bear a legend in substantially the following form:
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF
THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY FOR SUCH SECURITIES BY SUBMITTING A WRITTEN REQUEST FOR SUCH
INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS: INTERNATIONAL LEASE FINANCE CORPORATION, 10250
CONSTELLATION BLVD., SUITE 3400, LOS ANGELES, CALIFORNIA ATTENTION: FRED S. CROMER.
Ex B-1
[ ]% Senior Note due 20[ ]
CUSIP No. [ ]
ISIN No. [ ]
INTERNATIONAL LEASE FINANCE CORPORATION, a California corporation, promises to pay to [ ], or registered assigns, the principal sum
[of Dollars] [listed on the Schedule of Increases or Decreases in Global Security attached hereto]5 on [ ], 20[ ].
Interest Payment Dates: [ ] and [ ].
Record Dates: [ ] and [ ].
Additional provisions of this Security are set forth on the other side of this Security.
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5 |
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Use the Schedule of Increases and Decreases language if Security is in Global Form. |
Ex B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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INTERNATIONAL LEASE FINANCE CORPORATION
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By: |
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Name: |
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Title: |
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Dated:
Ex B-1
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CERTIFICATE OF
AUTHENTICATION
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Authentication Agent, certifies that this is
one of the Securities referred to in the Indenture.
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By: |
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Authorized Signatory |
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Ex B-1
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
[ ]% Senior Note due 20[ ]
INTERNATIONAL LEASE FINANCE CORPORATION, a California corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the
Company), promises to pay interest on the principal amount of this Security at the rate per annum
shown above. The Company shall pay interest semiannually on [ ] and [ ] of each year, commencing [September 15, 2010]6. Interest on the
Securities shall accrue from the most recent date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for, from [March 22,
2010]7 until the principal hereof is due. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
The Company shall pay interest on the Securities (except defaulted interest) to the Persons
who are registered Holders at the close of business on the [ ] or [ ] next preceding the interest payment date even if Securities are canceled after the record
date and on or before the interest payment date (whether or not a Business Day). The Holders must
surrender Securities to a Paying Agent to collect principal payments. The Company shall pay
principal and interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal and interest) shall be made by the Paying
Agent by wire transfer of immediately available funds to the accounts specified by The Depository
Trust Company or any successor depositary. The Company will make all payments in respect of a
certificated Security (including principal and interest) at the office of each Paying Agent, except
that, at the option of the Company, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on the
Securities may also be made, in the case of a Holder of at least $1,000,000 aggregate principal
amount of Securities, by wire transfer to a U.S. dollar account maintained by the payee with a bank
in the United States if such Holder elects payment by wire transfer by giving written notice to the
Paying Agent to such effect designating such account no later than
30 days immediately preceding
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Include such date with respect to the Exchange Securities issued in exchange for Securities issued on the Issue Date. |
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7 |
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Include such date with respect to the Exchange Securities issued in exchange for
Securities issued on the Issue Date. |
Ex B-2
the relevant due date for payment (or such other date as the Paying Agent may accept in its
discretion).
3. |
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Paying Agent, Security Registrar and Authentication Agent |
Initially, Deutsche Bank Trust Company Americas will act as Paying Agent, Security Registrar
and Authentication Agent. The Company may appoint and change any Paying Agent or Security
Registrar without notice. The Company or any of its domestically incorporated wholly owned
Subsidiaries may act as Paying Agent or Security Registrar.
The Company issued the Securities under an Indenture dated as of March 22, 2010 (the
Indenture), among the Company, Wilmington Trust FSB, as trustee (the Trustee) and Deutsche Bank
Trust Company Americas, as Paying Agent, Security Registrar and Authentication Agent. The terms of
the Securities include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date
of the Indenture (the TIA). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture and
the TIA for a statement of such terms and provisions
The Securities are senior unsecured obligations of the Company.
The Securities are not subject to optional redemption.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. |
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Denominations; Transfer; Exchange |
The Securities are in registered form without coupons in denominations of $2,000 and any
integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange
of Securities in accordance with the Indenture. Upon any registration of transfer or exchange, the
Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Security Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in part, the portion of
the Security not to be redeemed) or to transfer or exchange any Securities for a period of 15 days
prior to a selection of Securities to be redeemed.
Ex B-3
The registered Holder of this Security shall be treated as the owner of it for all purposes.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and a Paying Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, the Holders entitled to
the money must look to the Company for payment as general creditors and the Trustee and a Paying
Agent shall have no further liability with respect to such monies.
10. |
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Discharge and Defeasance |
Subject to certain conditions, the Company at any time may terminate some of or all its
obligations under the Securities and the Indenture if the Company deposits with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on the Securities to
redemption, or maturity, as the case may be.
The Indenture and the Securities may be amended or supplemented as provided in the Indenture.
12. |
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Defaults and Remedies |
The Events of Default relating to the Securities are defined in Section 501 of the Indenture.
Upon the occurrence of an Event of Default, the rights and obligations of the Company and the
Holders shall be as set forth in the Indenture.
13. |
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Trustee Dealings with the Company |
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
14. |
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No Recourse Against Others |
No director, officer, employee, incorporator or holder of any equity interests in the Company
or any direct or indirect parent corporation, as such, shall have any liability for any obligations
of the Company under the Securities, the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Securities by accepting a Security
waives and releases all such liability.
Ex B-4
This Security shall not be valid until an authorized signatory of the Trustee (or an
authentication agent) manually signs the certificate of authentication on the other side of this
Security.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
18. |
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CUSIP Numbers, ISINs and Common Codes |
The Company has caused CUSIP numbers and ISINs to be printed on the Securities and has
directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request and without charge
to the Holder a copy of the Indenture which has in it the text of this Security.
Ex B-5
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably
appoint agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
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Date: |
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Your Signature: |
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Sign exactly as your name appears on the other side of this Security. |
Ex B-6
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The
initial principal amount of this Global Security is $_______________. The following
increases or decreases in this Global Security have been made:
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Amount of decrease |
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in Principal Amount |
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Amount of increase in |
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Principal amount of this |
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Signature of authorized |
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Date of |
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of this Global |
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Principal Amount of |
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Global Security following |
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signatory of Trustee or |
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Exchange |
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Security |
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this Global Security |
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such decrease or increase |
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Securities Custodian |
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Ex B-7
EXHIBIT C
Initial Non-Restricted Subsidiaries
Aircraft SPC-12, Inc.
Aircraft SPC-3, Inc.
Aircraft SPC-9, Inc.
Apollo Aircraft Inc.
Artemis Aircraft Leasing Limited
CABREA, Inc.
Calliope Limited
Delos Aircraft Inc.
ILFC (Bermuda) No. 4, Ltd.
ILFC (Bermuda) No. 5, Ltd.
ILFC (Bermuda) No. 6, Ltd.
ILFC Dover, Inc.
ILFC Labuan ECA Ltd.
ILFC Rhino I LLC (Dissolved)
ILFC Rhino II LLC (Dissolved)
ILFC Volare, Inc.
Hyperion Aircraft Inc.
Klementine Holdings, Inc.
Klementine Leasing, Inc.
Romandy Triple Sept LLC
Sierra Leasing Limited
Shrewsbury Aircraft Leasing Limited
States Aircraft, Inc.
Top Aircraft, Inc.
Whitney Ireland Leasing Limited
Whitney Leasing Limited
Whitney US Leasing, Inc.
Ex C-1