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Exhibit
4.1
EXECUTION
VERSION
NORFOLK
SOUTHERN CORPORATION
5.750%
Senior Notes due 2018
INDENTURE
Dated
as of April 4, 2008
___________________
U.S.
Bank Trust National Association,
Trustee
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Page |
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ARTICLE
I
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Definitions
and Incorporation by Reference
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SECTION
1.01. Definitions
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1
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SECTION 1.02.
Other Definitions
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9
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SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
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10
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SECTION 1.04.
Rules of Construction
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10
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SECTION 1.05.
Acts of Holders
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11
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ARTICLE
II
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The
Securities
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SECTION 2.01.
Amount of Securities; Issuable in Series
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11
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SECTION 2.02.
Form and Dating
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12
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SECTION 2.03.
Execution and Authentication
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13
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SECTION 2.04.
Registrar and Paying Agent
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13
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SECTION 2.05.
Paying Agent To Hold Money in Trust
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14
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SECTION 2.06.
Holder Lists
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14
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SECTION 2.07.
Replacement Securities
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14
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SECTION 2.08.
Outstanding Securities
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15
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SECTION 2.09.
Temporary Securities
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15
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SECTION 2.10.
Cancellation
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15
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SECTION 2.11.
Defaulted Interest
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15
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SECTION 2.12.
CUSIP Numbers
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16
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ARTICLE
III
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Redemption
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SECTION 3.01.
Notices to Trustee
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16
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SECTION 3.02.
Selection of Securities To Be Redeemed
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16
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SECTION 3.03.
Notice of Redemption
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17
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SECTION 3.04.
Effect of Notice of Redemption
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17
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SECTION 3.05.
Deposit of Redemption Price
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17
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SECTION 3.06.
Securities Redeemed in Part
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18
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ARTICLE
IV
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Covenants
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SECTION 4.01.
Payment of Principal, Premium and Interest
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18
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SECTION 4.02.
Maintenance of Office or Agency
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18
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SECTION 4.03.
Money for Securities Payments to Be Held in Trust
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18
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SECTION 4.04.
Corporate Existence
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20
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SECTION 4.05.
Maintenance of Properties
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20
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SECTION 4.06.
Payment of Taxes and Other Claims
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20
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SECTION 4.07.
Limitations on Liens on Stock or Indebtedness of Principal
Subsidiary
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20
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SECTION 4.08.
Limitations on Funded Debt
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21
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SECTION 4.09.
Waiver of Certain Covenants
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22
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SECTION 4.10.
Statement as to Compliance
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22
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SECTION
4.11. [Reserved]
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23
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SECTION 4.12.
Change of Control
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23
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SECTION 4.13.
Calculation of Original Issue Discount
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24
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ARTICLE
V
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Consolidation,
Merger, Conveyance, Transfer or Lease
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SECTION 5.01.
Company May Consolidate, Etc., Only on Certain
Terms
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24
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SECTION 5.02.
Successor Corporation Substituted
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25
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ARTICLE
VI
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Defaults
and Remedies
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SECTION 6.01.
“Event of Default”
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25
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SECTION 6.02.
Acceleration
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27
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SECTION 6.03.
Other Remedies
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28
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SECTION 6.04.
Waiver of Past Defaults
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28
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SECTION 6.05.
Control by Majority
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29
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SECTION 6.06.
Limitation on Suits
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29
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SECTION 6.07.
Rights of Holders to Receive Payment
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29
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SECTION 6.08.
Collection Suit by Trustee
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29
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SECTION 6.09.
Trustee May File Proofs of Claim
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30
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SECTION
6.10. Priorities
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30
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SECTION 6.11.
Undertaking for Costs
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30
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SECTION 6.12.
Waiver of Stay or Extension Laws
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30
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ARTICLE
VII
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Trustee
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SECTION 7.01.
Duties of Trustee
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31
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SECTION 7.02.
Rights of Trustee
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32
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SECTION 7.03.
Individual Rights of Trustee
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33
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SECTION 7.04.
Trustee’s Disclaimer
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33
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SECTION 7.05.
Notice of Defaults
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33
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SECTION 7.06.
Reports by Trustee to Holders
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33
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SECTION 7.07.
Compensation and Indemnity
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34
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SECTION 7.08.
Replacement of Trustee
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34
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SECTION 7.09.
Successor Trustee by Merger
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35
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SECTION 7.10.
Eligibility; Disqualification
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36
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SECTION 7.11.
Preferential Collection of Claims
Against Company
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36
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ARTICLE
VIII
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Satisfaction
and Discharge of Indenture
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SECTION 8.01.
Satisfaction and Discharge of Indenture
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36
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SECTION 8.02.
Application of Trust Money
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38
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ARTICLE
IX
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Supplemental
Indentures
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SECTION 9.01.
Supplemental Indentures Without Consent of
Holders
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38
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SECTION 9.02.
Supplemental Indentures with Consent of Holders
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39
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SECTION 9.03.
Execution of Supplemental Indentures
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40
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SECTION 9.04.
Effect of Supplemental Indentures
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40
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SECTION 9.05.
Conformity with Trust Indenture Act
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40
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SECTION 9.06.
Reference in Securities to Supplemental
Indentures
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40
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ARTICLE
X
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Miscellaneous
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SECTION 10.01.
Trust Indenture Act Controls
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41
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SECTION
10.02. Notices
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41
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SECTION 10.03.
Communication by Holders with Other Holders
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42
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SECTION 10.04.
Certificate and Opinion as to Conditions
Precedent
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42
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SECTION 10.05.
Statements Required in Certificate or Opinion
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42
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SECTION 10.06.
When Securities Disregarded
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43
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SECTION 10.07.
Rules by Trustee, Paying Agent and Registrar
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43
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SECTION 10.08.
Governing Law; Waiver of Jury Trial
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43
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SECTION 10.09. No
Recourse Against Others
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43
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SECTION
10.10. Successors
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43
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SECTION 10.11.
Multiple Originals
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43
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SECTION 10.12.
Table of Contents; Headings
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44
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SECTION 10.13.
Force Majeure
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44
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Appendix
A
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-
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Provisions
Relating to Initial Securities
and
Exchange Securities
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Exhibit
1 to
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Appendix
A
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Form of
Initial Security
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Exhibit
A
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-
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Form of
Exchange Security
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Exhibit
B
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-
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Form of
Transferee Letter of Representation
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CROSS-REFERENCE
TABLE
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TIA
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Indenture
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Section
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Section
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310
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(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(b)
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7.08;
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7.10
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(c)
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N.A.
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311
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(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312
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(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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313
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(a)
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7.06
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(b)(1)
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N.A.
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(b)(2)
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7.06
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(c)
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7.06;
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10.02
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(d)
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7.06
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314
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(a)
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4.02;
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10.02
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(b)
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N.A.
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(c)(1)
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10.04
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(c)(2)
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10.04
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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10.05
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(f)
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4.13
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315
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(a)
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7.01
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(b)
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7.05;
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10.02
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(c)
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7.01
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(d)
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7.01
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(e)
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6.11
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316
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(a)
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(last
sentence)
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10.06
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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N.A.
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(b)
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6.07
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317
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(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.05
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318
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(a)
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10.01
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N.A.
Means Not Applicable.
Note: This
Cross-Reference Table shall not, for any purposes, be deemed
to be part of this Indenture.
INDENTURE
dated as of April 4, 2008, between NORFOLK SOUTHERN
CORPORATION, a Virginia corporation (the
“Company”), and U.S. Bank Trust National
Association, a national banking association duly organized and
existing under the laws of the United States, as trustee (the
“Trustee”).
Each
party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the
Company’s 5.750% Senior Notes due 2018, to be issued,
from time to time, in one or more series as provided in this
Indenture (the “Initial Securities”) and, if and
when issued pursuant to a registered or private exchange for
the Initial Securities, the Company’s 5.750% Senior
Notes due 2018 (the “Exchange Securities” and,
together with the Initial Securities, the
“Securities”):
ARTICLE
I
Definitions and
Incorporation by Reference
SECTION
1.01. Definitions
.
“
Act
,” when used with respect to any Holder, has the meaning
specified in Section 1.05.
“
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 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.
“
Below Investment
Grade Ratings Event ” means, with respect to the
Securities, on any day within the 60-day period (which period
shall be extended so long as the rating of the Securities is
under publicly announced consideration for a possible
downgrade by any Rating Agency) after the earlier of (1) the
occurrence of a Change of Control; or (2) public notice of the
occurrence of a Change of Control or the intention by the
Company to effect a Change of Control, the Securities are
rated below Investment Grade by each and every Rating
Agency. Notwithstanding the foregoing, a Below
Investment Grade Ratings Event otherwise arising by virtue of
a particular reduction in rating shall not be deemed to have
occurred in respect of a particular Change of Control (and
thus shall not be deemed a Below Investment Grade Ratings
Event for purposes of the definition of Change of Control
Repurchase Event hereunder) if the Rating Agencies making the
reduction in rating to which this definition would otherwise
apply do not announce or publicly confirm or inform the
Trustee in writing at the Company’s request that the
reduction was the result, in whole or in part, of any event or
circumstance comprised of or arising as a result of, or in
respect of, the applicable Change of Control (whether or not
the applicable Change of Control shall have occurred at the
time of the Below Investment Grade Ratings
Event).
“
Board of
Directors ” means the Board of Directors of the
Company or any duly authorized and constituted committee
thereof.
“
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 ” means any day other than a Saturday, a
Sunday or a day on which banking institutions in The City of
New York, New York are authorized or obligated by law,
regulation, executive order or governmental decree to
close.
“
Capital Lease
Obligation ” means any obligation arising out of
any lease of property which is required to be classified and
accounted for by the lessee as a capitalized lease on a
balance sheet of such lessee under generally accepted
accounting principles.
“
Change of
Control ” means the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any
“person” or “group” (as those terms
are used in Section 13(d)(3) of the Exchange Act), other than
the Company or its Subsidiaries, becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the combined
voting power of the Company’s Voting Stock or other
Voting Stock into which the Company’s Voting Stock is
reclassified, consolidated, exchanged or changed measured by
voting power rather than number of shares.
“
Change of
Control Repurchase Event ” means the occurrence
of both a Change of Control and a Below Investment Grade
Ratings Event with respect to the Securities.
“
Commission
” means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
“
Company
” means the Person named as the “Company” in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall
mean such successor Person and, for purposes of any provision
contained herein and expressly required by the TIA, each other
obligor on the indenture securities.
“
Company
Request ” or “ Company
Order ” means a written request or order signed
in the name of the Company by an Officer and by its Treasurer,
an Assistant Treasurer, Secretary or an Assistant Secretary,
and delivered to the Trustee.
“
Consolidated Net
Tangible Assets ” means, at any date, the total
assets appearing on the most recent consolidated balance sheet
of the Company and Restricted
Subsidiaries
as at the end of the fiscal quarter of the Company ending not
more than 135 days prior to such date, prepared in accordance
with generally accepted accounting principles of the United
States, less (i) all current liabilities (due within one year)
as shown on such balance sheet, (ii) applicable reserves,
(iii) investments in and advances to Securitization
Subsidiaries and Subsidiaries of Securitization Subsidiaries
that are consolidated on the consolidated balance sheet of the
Company and its Subsidiaries, and (iv) Intangible Assets and
liabilities relating thereto.
“
Corporate Trust
Office ” means the principal office of the
Trustee in the City of New York at which at any particular
time its corporate trust business shall be
administered.
“
Corporation
” means a corporation, association, company, limited
liability company, joint-stock company, partnership or
business trust.
“
Default
” means any event which is, or after notice or passage
of time or both would be, an Event of Default.
“
Dollars
” or “ $ ”
or any similar reference shall mean the coin or currency of
the United States of America as at the time shall be legal
tender for the payment of public and private
debts.
“
Event of
Default ” has the meaning set forth under Section
6.01.
“
Exchange
Act ” means the Securities Exchange Act of
1934.
“
Foreign
Government Securities ” means, with respect to
the Securities that are denominated in a currency other than
Dollars, securities that are (i) direct obligations of the
government that issued such currency for the payment of which
obligations its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of such government (the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation of such government) which, in either
case under clauses (i) or (ii), are not callable or redeemable
at the option of the issuer thereof.
“
Funded
Debt ” means (i) any indebtedness of a Restricted
Subsidiary maturing more than 12 months after the time of
computation thereof, (ii) guarantees by a Restricted
Subsidiary of Funded Debt or of dividends of others (except
guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the
ordinary course of business), (iii) all preferred stock of
such Restricted Subsidiary and (iv) all Capital Lease
Obligations of a Restricted Subsidiary.
“
Holder
” means the Person in whose name a Security is
registered in the Security Register.
“
Indebtedness
” means, at any date, without duplication, (i) all
obligations for borrowed money of a Restricted Subsidiary or
any other indebtedness of a Restricted Subsidiary, evidenced
by bonds, debentures, notes or other similar instruments and
(ii)
Funded
Debt, except such obligations and other indebtedness of a
Restricted Subsidiary and Funded Debt, if any, incurred as
part of a Securitization Transaction.
“
Indenture
” means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof including, for all purposes
of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental
indenture, respectively.
“
Intangible
Assets ” means at any date, the value (net of any
applicable reserves) as shown on or reflected in the most
recent consolidated balance sheet of the Company and the
Restricted Subsidiaries as at the end of the fiscal quarter of
the Company ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting
principles in the United States, of: (i) all trade names,
trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (ii) organizational and
development costs; (iii) deferred charges (other than prepaid
items, such as insurance, taxes, interest, commissions, rents,
deferred interest waiver, compensation and similar items and
tangible assets being amortized); and (iv) unamortized debt
discount and expense, less unamortized premium.
“
Investment
Grade ” means, with respect to Moody’s, a
rating of Baa3 or better (or its equivalent under any
successor rating categories of Moody’s); with respect to
S&P, a rating of BBB- or better (or its equivalent under
any successor rating categories of S&P); and, with respect
to any additional Rating Agency or Rating Agencies selected by
the Company, the equivalent investment grade credit
rating.
“
Issue
Date ” means the date on which the Original
Securities are initially issued.
“
Liens
” means such pledges, mortgages, security interests and
other liens, including purchase money liens, on property of
the Company or any Restricted Subsidiary which secure Funded
Debt.
“
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, request for repayment or
otherwise.
“
Moody’s
” means Moody’s Investors Service, Inc., as
subsidiary of Moody’s Corporation, and its
successors.
“
Obligation
” means any indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other
evidence of indebtedness.
“
Officer
” means the Chief Executive Officer, the President, the
Chief Financial Officer, any Vice President, the Treasurer,
the Assistant Treasurer, the Secretary or the Assistant
Secretary of the Company.
“
Officers’
Certificate ” means a certificate signed by two
Officers of the Company, at least one of whom shall be the
principal executive officer or principal financial officer of
the Company, and delivered to the Trustee.
“
OID
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 6.02.
“
Opinion of
Counsel ” means a written opinion from legal
counsel who is acceptable to the Trustee. The
counsel may be an employee of or counsel to the
Company.
“
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 Trustee or delivered to the
Trustee for cancellation;
(ii) Securities
for whose payment or redemption money, U.S. Government
Obligations or Foreign Government Securities as contemplated
by Section 8.01 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;
and
(iii) Securities
which have been paid pursuant to Section 2.07 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, (a) the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 6.02,
(b) the principal amount of a Security denominated in a
foreign currency or currencies shall be the Dollar equivalent,
determined by the company and set forth in an Officers’
Certificate on the date of original issuance of such Security,
of the principal amount (or, in the case of an OID Security,
the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (a) above) of
such Security, and (c) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the
Company
or of
such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee 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 the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
“
Person
” means any individual, corporation, company (including
any limited liability company), association, partnership,
joint venture, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other
entity.
“
Place of
Payment ,” when used with respect to the
Securities, means the place or places where the principal of
(and premium, if any) and interest on the Securities are
payable as specified as contemplated by Appendix
A.
“
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 2.07 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.
“
Principal
Subsidiary ” means Norfolk Southern Railway
Company.
“
Purchase Money
Lien ” means any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind upon any
indebtedness of any Principal Subsidiary acquired after the
date any Securities are first issued if such Purchase Money
Lien is for the purpose of financing, and does not exceed, the
cost to the Company or any Subsidiary of acquiring the
indebtedness of such Principal Subsidiary and such financing
is effected concurrently with, or within 180 days after, the
date of such acquisition.
“
Rating
Agency ” means (1) each of Moody’s and
S&P; and (2) if either of Moody’s or S&P ceases
to rate the Securities or fails to make a rating of the Notes
publicly available for reasons outside of the Company’s
control, a “nationally recognized statistical rating
organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the
Company (as certified by a Board Resolution) as a replacement
agency for Moody’s or S&P, or both of them, as the
case may be.
“
Receivables
” mean any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising, either
directly or indirectly, from the financing by the Company or
any Subsidiary of the Company of property or services, monies
due thereunder, security interests in the property and
services financed thereby and any and all other related
rights.
“
Repurchase
Date ” shall have the meaning set forth in
Section 4.12.
“
Repurchase
Offer ” shall have the meaning set forth in
Section 4.12.
“
Repurchase
Price ” shall have the meaning set forth in
Section 4.12.
“
Responsible
Officer ,” when used with respect to the Trustee,
means any vice president, any assistant vice
president, any trust officer or assistant trust officer or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performance
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his
knowledge and familiarity with the particular subject, and who
shall have direct responsibility for the administration of
this Indenture..
“
Restricted
Subsidiary ” means each Subsidiary of the Company
other than Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries.
“
S&P
” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., and its
successors.
“
Secured
Debt ” means indebtedness for money borrowed
which is secured by a mortgage, pledge, lien, security
interest or encumbrance on property of the Company or any
Restricted Subsidiary, but shall not include guarantees
arising in connection with the sale, discount, guarantee or
pledge of notes, chattel mortgages, leases, accounts
receivable, trade acceptances and other paper arising, in the
ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention
with, distributors, dealers or other customers, of
merchandise, equipment or services.
“
Securities
Act ” means the Securities Act of
1933.
“
Securitization
Subsidiary ” means a Subsidiary of the Company
(i) which is formed for the purpose of effecting one or more
Securitization Transactions and engaging in other activities
reasonably related thereto and (ii) as to which no portion of
the Indebtedness or any other obligations (a) is guaranteed by
any Restricted Subsidiary, or (b) subjects any property or
assets of any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those
related to servicing) entered into in the ordinary course of
business in connection with a Securitization Transaction and
inter-company notes and other forms of capital or credit
support relating to the transfer or sale of Receivables or
asset-backed securities to such Securitization Subsidiary and
customarily necessary or desirable in connection with such
transactions.
“
Securitization
Transaction ” means any transaction or series of
transactions that have been or may be entered into by the
Company or any of its Subsidiaries in connection with or
reasonably related to a transaction or series of transactions
in which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (i) a Securitization
Subsidiary or (ii) any other Person, or may grant a security
interest in, any Receivables or asset-backed securities or
interest therein
(whether
such Receivables or securities are then existing or arising in
the future) of the Company or any of its Subsidiaries, and any
assets related thereto, including, without limitation, all
security interests in the property or services financed
thereby, the proceeds of such Receivables or asset-backed
securities and any other assets which are sold in respect of
which security interests are granted in connection with
securitization transactions involving such
assets.
“
Significant
Subsidiary ” means any Subsidiary that would be a
“Significant Subsidiary” of the Company within the
meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission.
“
Standard
Securitization Undertakings ” means
representations, warranties, covenants and indemnities entered
into by the Company or any Subsidiary of the Company which are
customary in an accounts receivable securitization transaction
involving a comparable company.
“
Stated
Maturity ” means, with respect to any security,
the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but
excluding any provision providing
for the repurchase of such security at the option of the
holder thereof upon the happening of any contingency beyond
the control of the issuer unless such contingency has
occurred).
“
Subsidiary
” means, in respect of any Person, any corporation,
company (including any limited liability company),
association, partnership, joint venture or other business
entity of which a majority of the total voting power of the
Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(a)
such Person;
(b)
such Person and one or more Subsidiaries of such Person;
or
(c) one
or more Subsidiaries of such Person.
“
Trust Indenture
Act ” or “ TIA
” means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed, except as
provided in Section 9.05; provided
, however ,
that in the event the Trust Indenture Act of 1939 is amended
after such date, “Trust Indenture Act” means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
“
Trustee
” means the Person named as the “Trustee” in
the first paragraph of this Indenture until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
“Trustee” shall mean such successor
Trustee.
“
Uniform
Commercial Code ” means the New York Uniform
Commercial Code as in effect from time to time.
“
U.S.
Government Obligations ” means direct obligations
of the United States for the payment of which its full faith
and credit is pledged, or obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of
the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States 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’
obligations or a specific payment of principal of or interest
on any such U.S. Government Obligations held by such custodian
for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or
interest on the U.S. Government Obligations evidenced by such
depository receipt.
“
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.”
“
Voting
Stock ” of any specified “person” (as
that term is used in Section 13(d)(3) of the Exchange Act) as
of any date means the capital stock of such person that is at
the time entitled to vote generally in the election of the
board of directors of such person.
“
Wholly Owned
Subsidiary ” means, in respect of any Person, a
Subsidiary with respect to which such Person owns, directly or
indirectly, all of the Voting Stock. Unless
otherwise required by the context, Wholly Owned Subsidiary
shall refer to a Wholly Owned Subsidiary of the
Company.
SECTION 1.02.
Other
Definitions .
|
Term
|
Defined
in
Section
|
|
“Exchange
Security”
|
Appendix
A
|
|
“Global
Security”
|
Appendix
A
|
|
“OID”
|
2.01
|
|
“Original
Securities”
|
2.01
|
|
“Paying
Agent”
|
2.04
|
|
“Registered
Exchange Offer”
|
Appendix
A
|
|
“Registrar”
|
2.04
|
|
“Registration
Agreement”
|
Appendix
A
|
|
“Securities
Custodian”
|
Appendix
A
|
|
“Shelf
Registration Statement”
|
Appendix
A
|
SECTION 1.03.
Incorporation by
Reference of Trust Indenture Act . This
Indenture is subject to the mandatory provisions of the TIA,
which are incorporated by reference in and made a part of this
Indenture. The following TIA terms have the
following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means
the Trustee.
“obligor”
on the indenture securities means the Company and any other
obligor on the indenture securities.
All
other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by
SEC rule have the meanings assigned to them by such
definitions.
SECTION
1.04. Rules of
Construction . For all purposes of this
Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms
defined in this Section have the meanings assigned to them in
this Section 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 United States
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term “generally
accepted accounting principles” with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of
such computation;
(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) headings are
for convenience of reference only and do not affect
interpretation.
SECTION 1.05.
Acts of
Holders . (a) 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 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
conclusive in favor of the Trustee and the Company, if made in
the manner provided is this Section.
(b) The
fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) At
any time, the ownership of Securities shall be proved by the
Registrar.
(d) Any
request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such
Security.
ARTICLE
II
The
Securities
SECTION 2.01.
Amount of
Securities; Issuable in Series
. (a) The aggregate principal amount of
Securities which may be authenticated and delivered under this
Indenture is unlimited. All Securities shall be
identical in all respects other than issue prices and issuance
dates. The Securities may be issued in one or more
series; provided
, however ,
that any Securities issued with original issue discount
(“OID”) for federal income tax purposes shall not
be issued as part of the same series as any Securities that
are issued with a different amount of OID or are not issued
with OID. All Securities of any one series shall be
substantially identical except as to
denomination.
(b) Subject
to Section 2.03, the Trustee shall authenticate
Securities for original issue on the Issue Date in the
aggregate principal amount of $600,000,000 (the
“Original Securities”). With respect to
any Securities issued after the Issue Date (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, Original
Securities pursuant to Section 2.07, 2.08, 2.09 or 3.06
or Appendix A), there shall be established in or pursuant
to a Board Resolution, and subject to Section 2.03, 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 such
Securities:
(1) whether such
Securities shall be issued as part of a new or existing series
of Securities and, if issued as part of a new series, the
title of such Securities (which shall distinguish the
Securities of the series from Securities of any other
series);
(2) the aggregate
principal amount of such Securities to be authenticated and
delivered under this Indenture, which may be issued for an
unlimited aggregate principal amount (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
same series pursuant to Section 2.07, 2.08, 2.09 or 3.06
or Appendix A and except for Securities which, pursuant
to Section 2.03, are deemed never to have been
authenticated and delivered hereunder);
(3) the issue
price and issuance date of such Securities, including the date
from which interest on such Securities shall
accrue;
(4) if
applicable, that such Securities shall be issuable in whole or
in part in the form of one or more Global Securities and, in
such case, the respective
(5)
depositories
for such Global Securities; the form of any legend or legends
that shall be borne by any such Global Security in addition to
or in lieu of that set forth in Exhibit 1 to
Appendix A and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of Appendix A
in which any such Global Security may be exchanged in whole or
in part for Securities registered; and any transfer of such
Global Security in whole or in part may be registered in the
name or names of Persons other than the depository for such
Global Security or a nominee thereof; and
(6) if
applicable, that such Securities shall not be issued in the
form of Initial Securities subject to Appendix A, but shall be
issued in the form of Exchange Securities as set forth in
Exhibit A.
SECTION 2.02.
Form and
Dating . Provisions relating to the Initial
Securities of each series and the Exchange Securities are set
forth in Appendix A, which is hereby incorporated in and
expressly made part of this Indenture. The Initial
Securities of each series and the Trustee’s certificate
of authentication shall be substantially in the form of
Exhibit 1 to Appendix A which is hereby incorporated
in and
expressly
made a part of this Indenture. The Exchange
Securities and the Trustee’s certificate of
authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly
made a part of this Indenture. The Securities of
each series may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage, provided that any such
notation, legend or endorsement is in a form reasonably
acceptable to the Company. Each Security shall be
dated the date of its authentication. The terms of
the Securities of each series set forth in Exhibit 1 to
Appendix A and Exhibit A are part of the terms of
this Indenture.
SECTION
2.03. Execution and
Authentication . (a) An Officer
(and for purposes of this Section 2.03, the term Officer shall
include any Vice President of the Company authorized by the
Board of Directors) shall sign the Securities for the Company
by manual or facsimile signature.
(b) If
an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the
Security, the Security shall be valid
nevertheless.
(c) 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 written order of the Company
for the authentication and delivery of such Securities, and
the Trustee in accordance with such written order of the
Company shall authenticate and deliver such
Securities. Other than in the case of the Original
Securities, such written order of the Company for the
authentication and delivery of such Securities shall be in the
form of an Officers’ Certificate.
(d) A
Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication
on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this
Indenture.
(e) The
Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An
authenticating agent has the same rights as any Registrar,
Paying Agent or agent for service of notices and
demands.
SECTION 2.04.
Registrar and
Paying Agent . (a) The Company
shall maintain an office or agency in the City of New York
where Securities may be presented for registration of transfer
or for exchange (the “Registrar”) and an office or
agency in the City of New York where Securities may be
presented for payment (the “Paying
Agent”). The Registrar shall keep a register
of the Securities and of their transfer and
exchange. The Company may have one or more
co-registrars and one or more additional paying
agents. The term “Paying Agent”
includes any additional paying agent.
(b) The
Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate the terms of the
TIA. Such agreement shall implement the provisions
of this Indenture that relate to such agent. The
Company shall notify the Trustee in writing of the name and
address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company
or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar
or transfer agent.
(c) The
Company hereby appoints the Trustee as initial Registrar and
initial Paying Agent in connection with the
Securities.
SECTION 2.05.
Paying Agent To
Hold Money in Trust . Prior to each due date
of the principal and interest on any Security, the Company
shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest when so becoming
due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities and shall notify
the Trustee of any default by the Company in making any such
payment. If the Company or a Wholly Owned
Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying
Agent. Upon complying with this Section 2.05, the
Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.06.
Holder
Lists . The Trustee shall preserve in as
current a form as is reasonably practicable the most recent
list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably
require of the names and addresses of
Holders.
SECTION 2.07.
Replacement
Securities . (a) If a mutilated
Security is surrendered to the Registrar or if the Holder of a
Security claims that such Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security if the requirements
of Section 8-405 of the Uniform Commercial Code are met
and the Holder satisfies any other reasonable requirements of
the Trustee. Such Holder shall furnish an indemnity
bond sufficient in the judgment of the Company and the Trustee
to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company
and the Trustee may charge the Holder for their expenses in
replacing a Security.
(b) Every
replacement Security is an additional obligation of the
Company.
SECTION 2.08.
Outstanding
Securities . (a) Securities
outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered
to it for cancellation and those described in this
Section 2.08 as not outstanding. A Security
does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
(b) If
a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security
is held by a bona fide purchaser.
(c) If
the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date
money sufficient to pay all principal and interest payable on
that date with respect to the Securities (or portions thereof)
to be redeemed or maturing, as the case may be, then on and
after that date such Securities (or portions thereof) cease to
be outstanding and interest on them ceases to
accrue.
SECTION 2.09.
Temporary
Securities . Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities and deliver them in
exchange for temporary Securities.
SECTION 2.10.
Cancellation
. The Company at any time may deliver Securities to
the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel
all Securities surrendered for registration of transfer,
exchange, payment or cancellation and will dispose of all
cancelled Securities in accordance with its customary
procedures unless the Company directs the Trustee to deliver
canceled Securities to the Company. The Company may
not issue new Securities to replace Securities it has
redeemed, paid or delivered to the Trustee for
cancellation.
SECTION 2.11.
Defaulted
Interest . If the Company defaults in a
payment of interest on the Securities, the Company shall pay
the defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted
interest to the persons who are Holders on a subsequent
special record date. The Company shall fix or cause
to be fixed any such special record date and payment date to
the reasonable satisfaction of the Trustee and shall promptly
mail to each Holder a notice that states the special record
date, the payment date and the amount of defaulted interest to
be paid.
SECTION 2.12.
CUSIP
Numbers . The Company in issuing the
Securities may use “CUSIP” numbers (if then
generally in use) and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a
convenience to Holders; provided
, however ,
that neither the Company nor the Trustee shall have any
responsibility for any defect in the “CUSIP”
number that appears on any Security, check, advice of payment
or redemption notice, and any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company shall promptly notify
the Trustee in writing of any change in the CUSIP
number(s).
ARTICLE
III
Redemption
SECTION 3.01.
Notices to
Trustee . (a) If the Company
elects to redeem Securities pursuant to paragraph 5 of
the Securities or is required to redeem Securities pursuant to
paragraph 8 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal
amount of Securities to be redeemed and that such redemption
is being made pursuant to either paragraph 5 or
paragraph 8 of the Securities.
(b) The
Company shall give each notice to the Trustee provided for in
this Section 3.01 at least 45 days before the redemption
date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an
Officers’ Certificate from the Company to the effect
that such redemption will comply with the conditions
herein.
SECTION 3.02.
Selection of
Securities To Be Redeemed . If fewer than
all the Securities are to be redeemed pursuant to
paragraph 5 of the Securities, the Trustee shall select
the Securities to be redeemed pro rata or by lot or by a
method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee considers
fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection
from outstanding Securities not previously called for
redemption. The Trustee may select for redemption
portions of the principal of Securities that have
denominations larger than $2,000. Securities and
portions of them the Trustee selects shall be in amounts of
$2,000 or a whole multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for
redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be
redeemed.
SECTION 3.03.
Notice of
Redemption . (a) At least
30 days but not more than 60 days before a date for
redemption of Securities, the Company shall mail a notice
of redemption
by first-class mail to each Holder of Securities to be
redeemed at such Holder’s registered
address. The notice shall identify the Securities
(including CUSIP number(s)) to be redeemed and shall
state:
(1) the
redemption date;
(2) the
redemption price;
(3) the name and
address of the Paying Agent;
(4) that
Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than
all the outstanding Securities are to be redeemed, the
identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless
the Company defaults in making such redemption payment,
interest on Securities (or portion thereof) called for
redemption ceases to accrue on and after the redemption date,
and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender to the Paying
Agent; and
(7) that no
representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on
the Securities.
(b) At
the Company’s written request, the Trustee shall give
the notice of redemption in the Company’s name and at
the Company’s expense. In such event, the
Company shall provide the Trustee with the information
required by this Section 3.03 at least 45 days before the
redemption date.
SECTION 3.04.
Effect of Notice
of Redemption . Once notice of redemption is
mailed, Securities called for redemption become due and
payable on the redemption date and at the redemption price
stated in the notice. Upon surrender to the Paying
Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest, if any, to the
redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the
related interest payment date that is on or prior to the date
of redemption). Failure to give notice of any
defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05.
Deposit of
Redemption Price . Prior to or by 10:00
a.m., New York City time on the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company or a
Wholly Owned Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption
price
of and
accrued interest, if any (subject to the right of Holders of
record on the relevant record date to receive interest due on
the related interest payment date that is on or prior to the
date of redemption), on all Securities to be redeemed on that
date other than Securities or portions of Securities called
for redemption that have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06.
Securities
Redeemed in Part . Upon surrender of a
Security that is redeemed in part, the Company shall execute
and the Trustee shall authenticate for the Holder (at the
Company’s expense) a new Security equal in principal
amount to the unredeemed portion of the Security
surrendered.
ARTICLE
IV
Covenants
SECTION 4.01.
Payment of
Principal, Premium and Interest . The
Company covenants and agrees for the benefit of the Securities
that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this
Indenture.
SECTION 4.02.
Maintenance of
Office or Agency . (a) The
Company will maintain or cause to be maintained in each Place
of Payment for the Securities an office or agency where
Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served,
and the Company hereby initially appoints the Corporate Trust
Office of the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company
will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The
Company may also from time to time designate one or more other
offices or agencies where the Securities 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 the Securities 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 4.03.
Money for
Securities Payments to Be Held in Trust
. (a) If the Company shall at any time
act as its
own
Paying Agent with respect to the Securities, it will, on or
before each due date of the principal of (and premium, if any)
or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to
act.
(b) Whenever
the Company shall have one or more Paying Agents for the
Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Securities,
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 notify
the Trustee of its action or failure so to act.
(c) The
Company will cause each Paying Agent for the 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 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) in the making of any payment of
principal (and premium, if any) or interest on the Securities;
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.
(d) 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.
(e) 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 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.
SECTION 4.04.
Corporate
Existence . Subject to Article V, 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 that of each Subsidiary and the rights (charter
and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right or franchise or to retain
any Subsidiary if the Company shall determine that the
preservation or retention thereof is no longer desirable in
the conduct of the business of the Company and its
Subsidiaries considered as a whole and that the loss thereof
is not disadvantageous in any material respect to the
Holders.
SECTION 4.05.
Maintenance of
Properties . The Company will cause all
properties deemed by the Company to be necessary and useful in
the conduct of its business or the
business of any Subsidiary to be maintained and kept in such
condition, repair and working order and supplied with such
equipment and will cause to be made such repairs, renewals,
replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary or appropriate in
the performance of its business, provided, however, that
nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of such
properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Company
or of the Subsidiary concerned, desirable in the conduct of
its business or the business of any Subsidiary and not
disadvantageous in any material respect to the
Holders.
SECTION 4.06.
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, and, in each case, only if the
failure to pay or discharge could be disadvantageous in any
material respect to the Holders (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the
Company or any 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
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 or otherwise and the Company shall
have set aside on its books adequate reserves with respect
thereto (if and to the extent required by generally accepted
accounting principles).
SECTION 4.07.
Limitations on
Liens on Stock or Indebtedness of Principal Subsidiary
. For so long as any Securities issued pursuant to
this Indenture are Outstanding, the Company will not, nor will
it permit any Subsidiary to, create, assume, incur or suffer
to exist any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind, other than a Purchase Money
Lien, upon any stock or indebtedness, whether owned on the
date any Securities are first
issued
or thereafter acquired, of any Principal Subsidiary, to secure
any Obligation (other than the Securities) of the Company, any
Subsidiary or any other person, without in any such case
making effective provision whereby all of the outstanding
Securities shall be directly secured equally and ratably with
such Obligation. This Section shall not (i) apply
to any mortgage, pledge, lien, encumbrance, charge or security
interest on any stock or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary,
(ii) restrict any other property of the Company or its
Subsidiaries or (iii) restrict the sale by the Company or any
Subsidiary of any stock or indebtedness of any
Subsidiary.
SECTION 4.08.
Limitations on
Funded Debt . (a) For so long as
any Securities issued pursuant to this Indenture are
Outstanding, the Company will not permit any Restricted
Subsidiary to incur, issue, guarantee or create any Funded
Debt unless, after giving effect thereto, the sum of the
aggregate amount of all outstanding Funded Debt of the
Restricted Subsidiaries would not exceed an amount equal to
15% of Consolidated Net Tangible Assets.
(b) This
Section shall not apply to, and there shall be excluded from
Funded Debt in any computation pursuant hereto, Funded Debt
secured by: (i) Liens on real or physical property of any
corporation existing at the time such corporation becomes a
Subsidiary; (ii) Liens on real or physical property existing
at the time of acquisition thereof incurred within 180
days of
the time of acquisition thereof (including, without
limitation, acquisition through merger or consolidation) by
the Company or any Restricted Subsidiary; (iii) Liens on real
or physical property thereafter acquired (or constructed) by
the Company or any Restricted Subsidiary and created prior to,
at the time of, or within 270 days after such acquisition
(including, without limitation, acquisition through merger or
consolidation) (or the completion of such construction or
commencement of commercial operation of such property,
whichever is later) to secure or provide for the payment of
all or any part of the purchase price (or the construction
price) thereof; (iv) Liens in favor of the Company or any
Restricted Subsidiary; (v) Liens in favor of the United States
of America, any State thereof or the District of Columbia, or
any agency, department or other instrumentality thereof, to
secure partial, progress, advance or other payments pursuant
to any contract or the provisions of any statute, (vi) Liens
incurred or assumed in connection with the issuance of revenue
bonds the interest on which is exempt from federal income
taxation pursuant to Section 103(b) of the Internal Revenue
Code of 1954, as amended; (vii) Liens securing the performance
of any contract or undertaking not directly or indirectly in
connection with the borrowing of money, the obtaining of
advances or credit or the securing of Funded Debt, if made and
continuing in the ordinary course of business; (viii) Liens
incurred (no matter when created) in connection with the
Company or a Restricted Subsidiary engaging in a leveraged or
single-investor lease transaction; provided, however, that the
instrument creating or evidencing any borrowings secured by
such Lien will provide that such borrowings are payable solely
out of the income and proceeds of the property subject to such
Lien and are not a general obligation of the Company or such
Restricted Subsidiary; (ix) Liens under workers’
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts or deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary,
or
deposits
of cash or obligations of the United States of America to
secure surety, repletion and appeal bonds to which the Company
or any Restricted Subsidiary is a party or in lieu of such
bonds, or pledges or deposits for similar purposes in the
ordinary course of business, or Liens imposed by law, such as
laborers’ or other employees’, carriers’,
warehousemen’s, mechanics’, materialmen’s
and vendors’ Liens and Liens arising out of judgments or
awards against the Company or any Restricted Subsidiary with
respect to which the Company or such Restricted Subsidiary at
the time shall be prosecuting an appeal or proceedings for
review and with respect to which it shall have secured a stay
of execution pending such appeal or proceedings for review, or
Liens for taxes not yet subject to penalties for nonpayment or
the amount or validity of which is being in good faith
contested by appropriate proceedings by the Company or any
Restricted Subsidiary, as the case may be, or minor survey
exceptions, minor encumbrances, easement or reservations of,
or rights of others for, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions or Liens on the use
of real properties which Liens, exceptions, encumbrances,
easements, reservations, rights and restrictions do not, in
the opinion of the Company, in the aggregate materially
detract from the value of said properties or materially impair
their use in the operation of the business of the Company and
its Restricted Subsidiaries; (x) Liens incurred to finance
construction, alteration or repair of any real or physical
property and improvements thereto prior to or within 270 days
after completion of such construction, alteration or repair;
(xi) Liens incurred (no matter when created) in connection
with a Securitization Transaction; (xii) Liens on property (or
any Receivable arising in connection with the lease thereof)
acquired by the Company or a Restricted Subsidiary through
repossession, foreclosure or like proceeding and existing at
the time of the repossession, foreclosure, or like
proceeding;
(xiii) Liens on deposits of the Company or a Restricted
Subsidiary with banks (in the aggregate, not exceeding $50
million), in accordance with customary banking practice, in
connection with the providing by the Company or a Restricted
Subsidiary of financial accommodations to any person in the
ordinary course of business; or (xiv) any extension, renewal,
refunding or replacement of the foregoing.
SECTION 4.09.
Waiver of
Certain Covenants . The Company may omit in
any particular instance to comply with any term, provision or
condition set forth in Sections 4.01 and 4.08 of this
Indenture with respect to the Securities if before the time
for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities 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 and the duties of the Trustee in
respect of any such term, provision or condition shall remain
in full force and effect.
SECTION 4.10.
Statement as to
Compliance . The Company will deliver to the
Trustee, by May 1 of each year, a written statement, signed by
the principal executive officer, principal financial officer
or principal accounting officer of the Company and by the
Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary
of the Company, stating, as to each signer thereof,
that
(1) a review of
the activities of the Company during such year and of
performance under this Indenture has been made under his
supervision, and
(2) to the best
of his knowledge, based on such review, (a) the Company has
fulfilled all its obligations under this indenture throughout
such year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to
him and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such
an event has occurred and is continuing, specifying each such
event known to him and the nature and status
thereof.
SECTION
4.11. [ Reserved
]
SECTION 4.12.
Change of
Control . (a) If a Change of
Control Repurchase Event occurs with respect to the
Securities, unless the Company has exercised its right to
redeem the Notes pursuant to paragraph 5 of the Securities,
the Company will make an offer to each Holder of the
Securities to repurchase all or any part (in integral
multiples of $1,000) of that Holder’s Securities at a
repurchase price (the “Repurchase Price”) in cash
equal to 101% of the aggregate principal amount of such
Securities repurchased plus any accrued and unpaid interest on
the Notes repurchased to, but not including, the Repurchase
Date (defined below). Within 30 days following a Change of
Control Repurchase Event or, at the Company’s option,
prior to a Change of Control, but after the public
announcement of a Change of Control, the Company will mail, or
cause to be mailed, a notice to each Holder of the Securities,
with a copy to the Trustee, describing the transaction or
transactions that constitute or may constitute the Change of
Control Repurchase Event and offering to repurchase the
Securities on the payment date specified in the
notice
(such offer the “Repurchase Offer” and such date
the “Repurchase Date”), which Repurchase Date will
be no earlier than 30 days and no later than 60 days from the
date such notice is mailed. The notice shall, if mailed prior
to the date of consummation of the Change of Control, state
that the Repurchase Offer is conditioned on a Change of
Control Repurchase Event occurring on or prior to the
Repurchase Date.
(b) The
Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Securities
as a result of a Change of Control Repurchase
Event. To the extent that the provisions of any
securities laws or regulations conflict with the Change of
Control Repurchase Event provisions of the Securities, the
Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event
provisions of the Securities by virtue of such
conflict.
(c) On
the Repurchase Date, the Company will, to the extent
lawful:
(1) accept for
payment all Securities or portions of Securities properly
tendered pursuant to the Repurchase Offer;
(2) deposit with
Paying Agent an amount equal to the aggregate Repurchase Price
for all Securities or portions of Securities properly
tendered; and
(3) deliver, or
cause to be delivered, to the Trustee the Securities properly
accepted, together with an Officers’ Certificate stating
the aggregate principal amount of Securities being purchased
by the Company pursuant to the Repurchase Offer and that all
conditions precedent to the repurchase by the Company of
Securities pursuant to the Repurchase Offer have been complied
with.
(d) The
Trustee will promptly mail, or cause the Paying Agent promptly
to mail, to each Holder of Securities, or portions of
Securities, properly tendered the Repurchase Price for such
Securities or portions of Securities, and the Trustee will
promptly authenticate and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal
amount to any unpurchased portion of any Securities
surrendered, if applicable; provided that each new Note will
be in a principal amount of an integral multiple of
$1,000.
(e) The
Company will not be required to make a Repurchase Offer upon a
Change of Control Repurchase Event if a third party makes such
an offer in the manner, at the times and otherwise in
compliance with the requirements for such an offer made by the
Company and such third party purchases all Securities or
portions of Securities properly tendered and not withdrawn
under its offer.
(f) The
parties acknowledge that the Company may not have sufficient
funds to repurchase all Securities or portions of Securities
properly tendered upon a Change of Control Repurchase
Event.
SECTION 4.13.
Calculation of
Original Issue Discount . The Company shall file with
the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount, if any, of original
issue discount (including daily rates and accrual periods)
accrued on Outstanding Securities as of the end of such year
and (ii) such other specific information relating to such
original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE
V
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION 5.01.
Company May
Consolidate, Etc., Only on Certain Terms
. The Company shall not consolidate with or merge
into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person unless:
(1)
in
case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the
corporation 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
organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably
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 and treating any
indebtedness which becomes an obligation of the Company as a
result of such transaction as having been incurred by the
Company at the time of 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; and
(3)
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 with such transaction, such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02.
Successor
Corporation Substituted . Upon any
consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 5.01,
the successor corporation 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, the Company under this Indenture with the same
effect as if such successor corporation had been named as the
Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be relieved.
ARTICLE
VI
Defaults and
Remedies
SECTION 6.01.
“ Event of
Default ” wherever used herein with respect to a
Security, 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):
(1)
default
in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a
period of 30 days; or
(2)
default
in the payment of the principal of (or premium, if any, on)
any Security at its Maturity; or
(3)
default
in the performance, or breach, of any covenant or warranty of
the Company in this Indenture, and continuance of such default
or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or
(4)
a
default under any bond, debenture, note or other evidence of
indebtedness for money borrowed or guaranteed by the Company
or any Significant Subsidiary or under any mortgage,
indenture, equipment trust agreement or instrument under which
there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed or guaranteed by
the Company or any Significant Subsidiary (including this
indenture and including indebtedness in respect of capitalized
lease obligations), whether such indebtedness now exists or
shall hereafter be created, which, together with all other
such defaults, shall have resulted in such indebtedness, in an
aggregate principal amount exceeding $100,000,000, 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 discharged, or such acceleration having
been rescinded or annulled, or a sum of money sufficient to
discharge in full such indebtedness is not deposited in trust,
within a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities a
written. notice specifying such default
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; provided, however, that, subject to
the provisions of Section 7.02, the Trustee shall not be
deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge
of such default or (B) the Trustee shall have received written
notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any
such mortgage, indenture or other instrument; or
(5)
the
entry by a court having jurisdiction is 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 a 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
(6)
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.
SECTION 6.02.
Acceleration
. (a) If an Event of Default with
respect to the Securities 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 may declare the principal amount (or,
if the Securities are OID Securities, such portion of the
principal amount as may be specified in the terms of the
Securities) of all of the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become
immediately due and payable.
(b) At
any time after such a declaration of acceleration with respect
to the Securities 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 principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences
if
(1)
the
Company has paid or deposited with the Trustee a sum
sufficient to pay
(A)
all
defaulted interest on all Securities in accordance with
Section 2.11,
(B)
the
principal of (and premium, if any, on) any of the Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in the Securities,
(C)
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
(D)
all
sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2)
all
Events of Default with respect to the Securities, other than
the nonpayment of the principal of Securities which have
become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.04.
No such
rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 6.03.
Other
Remedies . (a) If an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of or
interest on the Securities or to enforce the performance of
any provision of the Securities or this
Indenture.
(b) The
Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or
any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other
remedy. All available remedies are
cumulative.
SECTION 6.04.
Waiver of Past
Defaults . The Holders of a majority in
aggregate principal amount of the Securities then Outstanding
by notice to the Trustee may waive an existing Default and its
consequences except (i) a Default in the payment of the
principal of, premium, if any, or interest on a Security or
(ii) a Default in respect of a provision
that
under Section 9.02 cannot be amended without the consent of
each Holder of the Securities. When a Default is
waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent
right.
SECTION 6.05.
Control by
Majority . The Holders of a majority in
aggregate principal amount of the Securities then
ou
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