INDENTURE

EXHIBIT 4.3

INDENTURE

Dated as of ____________, 20__

Between

ZHONGPIN INC.,

as Issuer

And

[__________________________],

as Trustee

___________________

Debt Securities

____________________

TABLE OF CONTENTS

  Page

 

ARTICLE I	DEFINITIONS AND INCORPORATION BY REFERENCE		1
	SECTION 1.01.	Definitions	1
	SECTION 1.02.	Other Definitions	3
	SECTION 1.03	Incorporation by Reference of Trust Indenture Act	3
	SECTION 1.04	Rules of Construction	3
ARTICLE II	THE SECURITIES		4
	SECTION 2.01	Unlimited in Amount, Issuable in Series, Form and Dating	4
	SECTION 2.02	Execution and Authentication	6
	SECTION 2.03	Registrar and Paying Agent	6
	SECTION 2.04	Paying Agent to Hold Assets in Trust	7
	SECTION 2.05	Holder Lists	7
	SECTION 2.06	Registration of Transfer and Exchange	7
	SECTION 2.07	Replacement Securities	7
	SECTION 2.08	Outstanding Securities	8
	SECTION 2.09	Treasury Securities	8
	SECTION 2.10	Temporary Securities	8
	SECTION 2.11	Cancellation	8
	SECTION 2.12	CUSIP Numbers	8
	SECTION 2.13	Defaulted Interest	8
	SECTION 2.14	Special Record Dates	9
ARTICLE III	REDEMPTION		9
	SECTION 3.01	Notices to Trustee	9
	SECTION 3.02	Selection of Securities to Be Redeemed	9
	SECTION 3.03	Notice of Redemption	9
	SECTION 3.04	Effect of Notice of Redemption	10
	SECTION 3.05	Deposit of Redemption Price	10
	SECTION 3.06	Securities Redeemed in Part	10
ARTICLE IV	COVENANTS		10
	SECTION 4.01	Payment of Securities	10
	SECTION 4.02	Maintenance of Office or Agency	10
	SECTION 4.03	SEC Reports	11
	SECTION 4.04	Compliance Certificate	11
	SECTION 4.05	Taxes	11
	SECTION 4.06	Corporate Existence	11
ARTICLE V	MERGER, ETC.		11
	SECTION 5.01	When Company May Merge, etc.	11
	SECTION 5.02	Successor Corporation Substituted	11

ARTICLE VI	DEFAULTS AND REMEDIES		12
	SECTION 6.01	Events of Default	12
	SECTION 6.02	Acceleration	12
	SECTION 6.03	Other Remedies	13
	SECTION 6.04	Wavier of Past Defaults	13
	SECTION 6.05	Control by Majority	13
	SECTION 6.06	Limitation on Suits	13
	SECTION 6.07	Rights of Holders to Receive Payment	13
	SECTION 6.08	Collection Suit by Trustee	13
	SECTION 6.09	Trustee May File Proofs of Claim	13
	SECTION 6.10	Priorities	14
	SECTION 6.11.	Undertaking for Costs	14
ARTICLE VII	TRUSTEE		14
	SECTION 7.01.	Duties of Trustee	14
	SECTION 7.02.	Rights of Trustee	15
	SECTION 7.03.	Individual Rights of Trustee	16
	SECTION 7.04.	Trustee’s Disclaimer	16
	SECTION 7.05.	Notice of Defaults	16
	SECTION 7.06.	Reports by Trustee to Holders	16
	SECTION 7.07.	Compensation and Indemnity	16
	SECTION 7.08.	Replacement of Trustee	17
	SECTION 7.09.	Successor Trustee by Merger, Etc.	17
	SECTION 7.10.	Eligibility; Disqualification	17
	SECTION 7.11.	Preferential Collection of Claims Against the Company	17
ARTICLE VIII	DISCHARGE OF INDENTURE		18
	SECTION 8.01.	Satisfaction and Discharge of Indenture	18
	SECTION 8.02.	Application of Trust Funds; Indemnification	18
	SECTION 8.03.	Legal Defeasance of Securities of any Series	19
	SECTION 8.04.	Covenant Defeasance	20
	SECTION 8.05.	Repayment to Company	20
ARTICLE IX	AMENDMENTS, SUPPLEMENTS AND WAIVERS		21
	SECTION 9.01.	Without Consent of Holders	21
	SECTION 9.02.	With Consent of Holders	21
	SECTION 9.03.	Compliance with Trust Indenture Act	21
	SECTION 9.04.	Revocation and Effect of Consents	21
	SECTION 9.05.	Notation on or Exchange of Securities	21
	SECTION 9.06.	Trustee to Sign Amendment, etc.	22
ARTICLE X	MISCELLANEOUS		22
	SECTION 10.01.	Trust Indenture Act Controls	22
	SECTION 10.02.	Notices	22
	SECTION 10.03.	Communication by Holders with Other Holders	23
	SECTION 10.04.	Certificate and Opinion as to Conditions Precedent	23
	SECTION 10.05.	Statements Required in Certificate or Opinion	23
	SECTION 10.06.	Rules by Trustee and Agents	23
	SECTION 10.07.	Legal Holidays	23
	SECTION 10.08.	Duplicate Originals	23
	SECTION 10.09.	Governing Law	23
	SECTION 10.10.	No Adverse Interpretation of Other Agreements	23
	SECTION 10.11.	Successors	23
	SECTION 10.12.	Severability	23
	SECTION 10.13.	Counterpart Originals	24

 

 

CROSS-REFERENCE TABLE

		Indenture
TIA Section		Section
Section 310 (a)(1)		7.10
	(a)(2)	7.10
	(a)(3)	N.A.
	(a)(4)	N.A.
	(a)(5)	7.10
	(b)	7.08; 7.10
	(c)	N.A.
Section 311 (a)		7.11
	(b)	7.11
	(c)	N.A.
Section 312(a)		2.05
	(b)(1)	N.A.
	(b)(2)	7.06
	(c)	7.06; 12.02
	(d)	7.06
Section 314 (a)(1), (2), (3)		4.03
	(a)(4)	4.04
	(b)	N.A.
	(c)(1)	10.04
	(c)(2)	10.04
	(c)(3)	N.A.
	(d)	N.A.
	(e)	10.05
	(f)	N.A.
Section 315 (a)		7.01(b)
	(b)	7.05; 10.02
	(c)	7.01(a)
	(d)	7.01(c)
	(e)	6.11
Section 316(a) (last sentence)		2.09
	(a)(1)(A)	6.05
	(a)(1)(B)	6.04
	(a)(2)	N.A.
	(b)	6.07
	(c)	9.04
Section 317 (a)(1)		6.08
	(a)(2)	6.09
	(b)	2.04
Section 318 (a)		10.01

N.A. means Not Applicable

NOTE:  This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the indenture.

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness to be issued in one or more series (the “ Securities ”), as herein provided, up to such principal amount as may from time to time be authorized in or pursuant to one or more resolutions of the Board of Directors or by supplemental indenture.

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of each series of the Securities:

ARTICLE I

A             DEFINITIONS AND INCORPORATION BY REFERENCE

“ Affiliate ” means, when used with reference to the Company or another person, any person directly or indirectly controlling, controlled by, or under direct or indirect common control with, the Company or such other person, as the case may be. For the purposes of this definition, “control” when used with respect to any specified person means the power to direct or cause the direction of management or 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 of the foregoing.

“ Agent ” means any registrar, Paying Agent, authenticating agent or co-registrar.

“ Board of Directors ” means, with respect to any person, the Board of Directors of a person or any duly authorized committee of such Board of Directors.

“ Board Resolution ” means, with respect to any person,  a copy of a resolution certified by the secretary or an assistant secretary of such person to have been duly adopted by the Board of Directors of such person or any duly authorized committee thereof and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Business Day ” means a day that is not a Legal Holiday as defined in Section 10.07 .

“ Company ” means the party named as such in this Indenture, or any other obligor under this Indenture, until a successor replaces it pursuant to this Indenture and thereafter means the successor.

“ Consolidated ” or “ consolidated ” means, when used with reference to any amount, such amount determined on a consolidated basis in accordance with GAAP, after the elimination of intercompany items.

“ Consolidated Assets ” means, at a particular date, all amounts which would be included under total assets on a consolidated balance sheet of the Company and its Subsidiaries as at such date, determined in accordance with GAAP.

“ Corporate Trust Office ” means the office of the Trustee at which at any particular time its corporate services business shall be principally administered, which office at the date of execution of this Indenture is located at [__________________].

“ Default ” means any event which is, or after notice or lapse of time or both would be, an Event of Default.

“ Event of Default ” has the meaning provided in Section 6.01 .

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended any successor Statute.

“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are applicable from time to time.

 

“ Global Security ” means a Security issued to evidence all or a part of any series of Securities that is executed by the Company and authenticated and delivered by the Trustee to a depositary or pursuant to such depositary’s instructions, all in accordance with this Indenture and pursuant to Section 2.01 , which shall be registered as to principal and interest in the name of such depositary or its nominee.

“ Holder ” means the person in whose name a Security is registered on the registrar’s books.

“ Indebtedness ” of a Person means all obligations which would be treated as liabilities upon a balance sheet of such Person prepared on a consolidated basis in accordance with GAAP.

“ Indenture ” means this Indenture, as amended, supplemented or modified from time to time, and shall include the terms of a particular series of Securities established as contemplated by Section 2.01.

“ Lien ” means any lien, security interest, charge or encumbrance of any kind.

“ Obligations ” means all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“ Officer ” of any person means the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary or the Controller of such person.

“ Officers’ Certificate ” means a certificate signed by two Officers or by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller of any person.

“ Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.

“ Original Issue Discount Security ” means any Security which provides that an amount less than its principal amount is due and payable upon acceleration after an Event of Default.

“ Person ” or “ person ” means any individual, corporation, partnership, joint venture, trust, association, limited liability company, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“ Redemption Date ” means, with respect to any Security to be redeemed, the date fixed for such redemption pursuant to this Indenture.

“ Redemption Price ” has the meaning provided in Section 3.03 .

“ SEC ” means the Securities and Exchange Commission and any government agency succeeding to its functions.

“ Securities ” means the means the securities authenticated and delivered under this Indenture.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Subsidiary ” of any Person means (i) a corporation a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such Person or by such Person and a subsidiary or subsidiaries of such Person or by a subsidiary or subsidiaries of such Person or (ii) any other Person (other than a corporation) in which such Person or such Person and a subsidiary or subsidiaries of such Person or a subsidiary or subsidiaries of such Persons, at the time, directly or indirectly, own at least a majority voting interest under ordinary circumstances.

 

“ TIA ” means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb), as in effect on the date of this Indenture; provided , however , that in the event the TIA is amended after such date, “ TIA ” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.

“ Trustee ” means the party named as such above until a successor becomes such pursuant to this Indenture and thereafter means or includes each party who is then a trustee hereunder, and if at any time there is more than one such party, “ Trustee ” as used with respect to the Securities of any series means the Trustee with respect to Securities of that series. If Trustees with respect to different series of Securities are Trustees under this Indenture, nothing herein shall constitute the Trustees co-Trustees of the same trust, and each Trustee shall be the Trustee of a trust separate and apart from any trust administered by any other Trustee with respect to a different series of Securities.

“ Trust Officer ” means any officer in the corporate trust department of the Trustee or any other officer of the Trustee assigned by the Trustee to administer this Indenture.

“ U.S. Government Obligations ” means (i) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America and which in either case, are non-callable at the option of the issuer thereof.

SECTION 1.02.   Other Definitions .

SECTION 1.03.   Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

The following TIA terms used in this Indenture have the following meanings:

“ 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; and

“ obligor ” on the 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 . Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (iii) “or” is not exclusive; (iv) words in the singular include the plural, and in the plural include the singular; (v) provisions apply to successive events and transactions; and (vi) statements relating to the payment of principal and interest shall include the payment, premium (if any) and interest.

 

ARTICLE II

THE SECURITIES

SECTION 2.01. Unlimited in Amount, Issuable in Series, Form and Dating .

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established pursuant to a Board Resolution or an Officers’ Certificate pursuant to authority granted under a Board Resolution or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

(a) The title, ranking and authorized denominations of such Securities;

(b) The aggregate principal amount of such Securities and any limit on such aggregate principal amount;

(c) The price (expressed as a percentage of the principal amount thereof) at which such Securities will be issued and, if other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof;

(d) The date or dates, or the method for determining such date or dates, on which the principal of such Securities will be payable;

(e) The rate or rates (which may be fixed or variable), or the method by which such rate or rates shall be determined, at which such Securities will bear interest, if any;

(f) The date or dates, or the method for determining such date or dates, from which any such interest will accrue, the dates on which any such interest will be payable, the record dates for such interest payment dates, or the method by which such dates shall be determined, the persons to whom such interest shall be payable, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;

(g) The place or places where the principal of and interest, if any, on such Securities will be payable, where such Securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon the Company in respect of such Securities and this Indenture may be served;

(h) The period or periods, if any, within which, the price or prices at which and the other terms and conditions upon which such Securities may, pursuant to any optional or mandatory redemption provisions, be redeemed, as a whole or in part, at the option of the Company;

(i) The obligation, if any, of the Company to redeem, repay or purchase such Securities pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities will be redeemed, repaid or purchased, as a whole or in part, pursuant to such obligation;

(j) If other than U.S. dollars, the currency or currencies in which such Securities are denominated and payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto;

(k) Whether the amount of payments of principal of (and premium, if any) or interest, if any, on such Securities may be determined with reference to an index, formula or other method (which index, formula or method may, but need not be, based on the yield on or trading price of other Securities, including United States Treasury Securities, or on a currency, currencies, currency unit or units, or composite currency or currencies) and the manner in which such amounts shall be determined;

 

(l) Whether the principal of or interest on the Securities of the series is to be payable, at the election of the Company or a holder thereof, in a currency or currencies, currency unit or units or composite currency or currencies other than that in which such Securities are denominated or stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made, and the time and manner of, and identity of the exchange rate agent with responsibility for, determining the exchange rate between the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are denominated or stated to be payable and the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are to be so payable;

(m) Provisions, if any, granting special rights to the holders of Securities of the series upon the occurrence of such events as may be specified;

(n) Any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants described herein;

(o) Whether and under what circumstances the Company will pay any additional amounts on such Securities in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities in lieu of making such payment;

(p) Whether Securities of the series are to be issuable as registered Securities, bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of bearer Securities and the terms upon which bearer Securities of the series may be exchanged for registered Securities of the series and vice versa (if permitted by applicable laws and regulations), whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent Global Security may exchange such interests for Securities of such series and of like tenor or any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in this Indenture, and, if registered Securities of the series are to be issuable as a Global Security, the identity of the depositary for such series;

(q) The date as of which any bearer Securities of the series and any temporary Global Security representing outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

(r) The person to whom any interest on any registered Security of the series shall be payable, if other than the person in whose name that Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest, the manner in which, or the person to whom, any interest on any bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an interest payment date will be paid if other than in the manner provided in this Indenture;

(s) Whether such Securities will be issued in certificated or book entry form;

(t) The applicability, if any, of the legal defeasance and covenant defeasance provisions of this Indenture to the Securities of the series;

(u) If the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents or conditions;

(v) Whether the Securities will be listed for trading on an exchange and the identity of such exchange;

(w) Whether any underwriters will act as market makers for the Securities;

(x) Any guarantees of such Securities by the Company’s Subsidiaries or others;

(y) The date or dates, if any, after which the Securities may be converted or exchanged into or for shares of the Company’s common stock or another company’s securities or properties or cash and the terms for any such conversion or exchange;

 

(z) Any other terms of the series.

The Securities of any series shall be substantially of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a written order of the Company, in each case with such insertions, omission, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that series may be listed or of the depository, or to conform to usage.

The Trustee’s Certificate of Authentication shall be in substantially the following form:

SECTION 2.02. Execution and Authentication . Two Officers shall sign the Securities for the Company by manual or facsimile signature.

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall be valid nevertheless.

A Security shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

The Trustee shall authenticate Securities for original issue upon a written order of the Company signed by one Officer of the Company.

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate 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 an Agent to deal with the Company or an Affiliate of the Company.

If the Company shall establish pursuant to Section 2.01 that the Securities of a series are to be issued in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series to be issued in the form of Global Securities and not yet canceled, (ii) shall be registered in the name of the depositary for such Global Security or Securities or the nominee of such depositary, (iii) shall be delivered by the Trustee to such depositary or pursuant to such depositary’s instructions, and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the depositary to the nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor depositary or a nominee of such successor depositary.”

Each depositary designated pursuant to Section 2.01 must, at the time of its designation and at all times while it services as depositary, be a clearing agency registered under the Exchange Act.

SECTION 2.03.   Registrar and Paying Agent . The Company shall maintain an office or agency where Securities of a particular series may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Securities may be presented for payment (the “ Paying Agent ”).  The registrar for a particular series of Securities shall keep a register of the Securities of that series and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional Paying Agents for each series of Securities. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any additional registrar. The Company may change any Paying Agent or registrar without prior notice to any Holder.

 

The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate the terms of the TIA and implement the terms of this Indenture which relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any Agent who is not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent or Registrar.

The Company hereby initially appoints the Trustee as Registrar and Paying Agent for each series of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time the Securities of that series are first issued.

SECTION 2.04. Paying Agent to Hold Assets in Trust .   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 assets held by the Paying Agent for the payment of principal of and interest on the Securities (whether such money has been paid to it by the Company or any other obligor on the Securities) and shall notify the Trustee of any failure by the Company (or any other obligor on the Securities) in making any such payment.  While any such failure continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money so paid over to the Trustee. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.

SECTION 2.05. 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, separately by series, and shall otherwise comply with TIA Section 312(a).  If the Trustee is not the registrar, the Company shall furnish to the Trustee on or before each interest payment date for the Securities 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, separately by series, relating to such interest payment date or request, as the case may be.

SECTION 2.06.   Registration of Transfer and Exchange . When Securities of a series are presented to the registrar or a co-registrar with a request to register their transfer or to exchange them for an equal principal amount of Securities of other denominations, the registrar or co-registrar shall register the transfer or make the exchange if its requirements for such transaction are met.  To permit registrations of transfer and exchanges, the Company shall issue and the Trustee shall authenticate Securities at the registrar’s or co-registrar’s request. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with registration, transfer or exchange of Securities other than exchanges pursuant to Section 2.10 , 3.06 or 9.05 not involving any transfer.

The registrar or co-registrar shall not be required to register the transfer or exchange of (i) any Security of a particular series selected for redemption in whole or in part, except the unredeemed portion of any Security of that series being redeemed in part, or (ii) any Security of a particular series during a period beginning at the opening of business 15 days before the day of any selection of Securities of that series for redemption under Section 3.02 and ending at the close of business on the date of selection.

Any Holder of a beneficial interest in a Global Security shall, by acceptance of such beneficial interest, agree that transfers of beneficial interest in such Global Security may be effected only through a book entry system maintained by the holder of such Global Security (or its agent), and that ownership of a beneficial interest in the Security shall be required to be reflected in a book entry system.

SECTION 2.07.   Replacement Securities .   If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security of the same series if the requirements of the Trustee and the Company are met; provided that, if any such Security has been called for redemption in accordance with the terms thereof, the Trustee may pay the Redemption Price thereof on the Redemption Date without authenticating or replacing such Security.  The Trustee or the Company may, in either case, require the Holder to provide an indemnity bond sufficient in the judgment of each of the Trustee and the Company to protect the Company, the Trustee or any Agent from any loss which any of them may suffer if a Security is replaced or if the Redemption Price therefor is paid pursuant to this Section. The Company may charge the Holder who has lost a Security for its expenses in replacing a Security.

 

Every replacement Security is an obligation of the Company and shall be entitled to the benefits of this Indenture equally and proportionately with any and all other Securities of the same series.

SECTION 2.08.   Outstanding Securities . The Securities of any series outstanding at any time are all the Securities of that series authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding.

If a Security is replaced pursuant to Section 2.07 , it ceases to be outstanding and interest ceases to accrue unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.

If all principal of and interest on any of the Securities are considered paid under Section 4.01 , such Securities shall cease to be outstanding and interest on them shall cease to accrue.

Except as provided in Section 2.09 , a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds such Security.

For each series of Original Issue Discount Securities, the principal amount of such Securities that shall be deemed to be outstanding and used to determine whether the necessary Holders have given any request, demand, authorization, direction, notice, consent or waiver, shall be the principal amount of such Securities that could be declared to be due and payable upon acceleration upon an Event of Default as of the date of such determination.  When requested by the Trustee, the Company will advise the Trustee of such amount, showing its computations in reasonable detail.

SECTION 2.09.   Treasury Securities . In determining whether the Holders of the required principal amount of Securities of any series have concurred in any direction, waiver or consent, Securities owned by the Company or an Affiliate of the Company shall be considered as though they are not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which such Trustee actually knows are so owned shall be so disregarded.

SECTION 2.10. Temporary Securities . Until definitive Securities are ready for delivery, the Company may prepare and execute 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 in exchange for temporary Securities.  Holders of temporary Securities shall be entitled to all of the benefits of this Indenture.

SECTION 2.11.   Cancellation . The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange, payment or repurchase.  The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, repurchase, redemption, replacement or cancellation and shall destroy such Securities (subject to the record retention requirements of the Exchange Act).  Certification of the destruction of all cancelled Securities shall be promptly delivered to the Company. The Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation.

SECTION 2.12. CUSIP Numbers . The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and the Trustee shall use CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any such notice 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 of any change in the CUSIP numbers.

SECTION 2.13.   Defaulted Interest . If the Company fails to make a payment of interest on any series of Securities, it shall pay such defaulted interest plus (to the extent lawful) any interest payable on the defaulted interest, in any lawful manner.  It may elect to pay such defaulted interest, plus any such interest payable on it, to the Persons who are Holders of such Securities on which the interest is due on a subsequent special record date.  The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each such Security.  The Company shall fix any such record date and payment date for such payment.  At least 15 days before any such record date, the Company shall mail to Holders affected thereby a notice that states the record date, payment date, and amount of such interest to be paid.

 

SECTION 2.14.   Special Record Dates .   The Company may, but shall not be obligated to, set a record date for the purpose of determining the identity of Holders entitled to consent to any supplement, amendment or waiver permitted by this Indenture. If a record date is fixed, the Holders of Securities of that series outstanding on such record date, and no other Holders, shall be entitled to consent to such supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders remain Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of Securities of that series required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.

ARTICLE III

B             REDEMPTION

SECTION 3.01.   Notices to Trustee .   If the Company elects to redeem Securities of any series pursuant to any optional redemption provisions thereof, it shall notify the Trustee of the intended Redemption Date and the principal amount of Securities of that series to be redeemed.

The Company shall give each notice provided for in this Section and an Officers’ Certificate at least 45 days before the Redemption Date (unless a shorter period shall be satisfactory to the Trustee).

SECTION 3.02.   Selection of Securities to Be Redeemed .   If fewer than all the Securities of any series are to be redeemed, the Trustee shall select the Securities of that series to be redeemed from the outstanding Securities of that series to be redeemed by a method that complies with the requirements of any exchange on which the Securities of that series are listed, or, if the Securities of that series are not listed on an exchange, on a pro rata basis or by lot, which in any case shall be in accordance with a method the Trustee considers fair and appropriate.

Except as otherwise provided as to any particular series of Securities, Securities and portions thereof that the Trustee selects shall be in amounts equal to the minimum authorized denomination for Securities of the series to be redeemed or any integral multiple thereof. 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 in writing of the Securities or portions of Securities to be called for redemption.

SECTION 3.03.   Notice of Redemption .   At least 30 days but not more than 60 days before the Redemption Date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed at the address of such Holder appearing in the register.

The notice shall identify the Securities of the series to be redeemed and shall state:

(3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued;