EXHIBIT 4(g)
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UTILICORP UNITED INC.
AND
THE CHASE MANHATTAN BANK, as Trustee
SUBORDINATED INDENTURE
Dated as of September ___, 1999
Providing for Issuance of Debt Securities
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UTILICORP UNITED, INC.
Reconciliation and Tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of September ___, 1999.
Trust Indenture Indenture
Act Section Section(s)
----------- ----------
(S)310 (a)(1)..................................................... 609
(a)(2)..................................................... 609
(a)(3)..................................................... Not Applicable
(a)(4)..................................................... Not Applicable
(a)(5)..................................................... 609
(b)........................................................ 608, 610
(c)........................................................ Not Applicable
(S)311 (a)........................................................ 613
(b)........................................................ 613
(c)........................................................ 613
(S)312 (a)........................................................ 701, 702(a)
(b)........................................................ 702(a)
(c)........................................................ 702(b)
(S)313 (a)........................................................ 703(a)
(b)........................................................ 703(b)
(c)........................................................ 703(c)
(d)........................................................ 703(c)
(S)314 (a)........................................................ 704
(a)(4)..................................................... 101, 1009
(b)........................................................ Not Applicable
(c)(1)..................................................... 102
(c)(2)..................................................... 102
(c)(3)..................................................... Not Applicable
(d)........................................................ Not Applicable
(e)........................................................ 102
(f)........................................................ Not Applicable
(S)315 (a)........................................................ 601
(b)........................................................ 602
(c)........................................................ 601
(d)........................................................ 601
(e)........................................................ 514
(S)316 (a)(1)(A).................................................. 502, 512
(a)(1)(B).................................................. 513
(a)(2)..................................................... Not Applicable
(b)........................................................ 508
(c)........................................................ 104
(S)317 (a)(1)..................................................... 503
(a)(2)..................................................... 504
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(b)........................................................ 1003
(S)318 (a)........................................................ 108
NOTE: This Reconciliation and Tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE Definitions and Other Provisions of General Application..............................................1
SECTION 1.01. Definitions......................................................................................1
SECTION 1.02. Compliance Certificates and Opinions............................................................7
SECTION 1.03. Form of Documents Delivered to Trustee..........................................................8
SECTION 1.04. Acts of Holders; Record Dates...................................................................8
SECTION 1.05. Notices, etc., to Trustee and the Company......................................................10
SECTION 1.06. Notice to Holders of Securities; Waiver........................................................11
SECTION 1.07. Language of Notices, etc.......................................................................11
SECTION 1.08. Conflict with Trust Indenture Act..............................................................12
SECTION 1.09. Effect of Headings and Table of Contents.......................................................12
SECTION 1.10. Successors and Assigns.........................................................................12
SECTION 1.11. Separability Clause............................................................................12
SECTION 1.12. Benefits of Indenture..........................................................................12
SECTION 1.13. Governing Law..................................................................................12
SECTION 1.14. Legal Holidays.................................................................................12
SECTION 1.15. Appointment of Agent for Service...............................................................13
SECTION 1.16. No Adverse Interpretation of Other Agreements..................................................13
SECTION 1.17. Execution in Counterparts......................................................................13
ARTICLE TWO Security Forms......................................................................................13
SECTION 2.01. Forms Generally................................................................................13
SECTION 2.02. Form of Trustee's Certificate of Authentication................................................14
SECTION 2.03. Securities in Global Form......................................................................14
SECTION 2.04. Form of Legend for Global Securities...........................................................15
SECTION 2.05. Form of Legend for Bearer Securities...........................................................15
ARTICLE THREE The Securities....................................................................................15
SECTION 3.01. Amount Unlimited; Issuable in Series...........................................................15
SECTION 3.02. Denominations..................................................................................18
SECTION 3.03. Execution, Authentication, Delivery and Dating.................................................18
SECTION 3.04. Temporary Securities...........................................................................20
SECTION 3.05. Registration, Registration of Transfer and Exchange............................................21
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...............................................24
SECTION 3.07. Payment of Interest; Interest Rights Preserved.................................................25
SECTION 3.08. Persons Deemed Owners..........................................................................26
SECTION 3.09. Cancellation...................................................................................27
SECTION 3.10. Computation of Interest........................................................................27
SECTION 3.11. Form of Certification by a Person Entitled to Receive a Bearer Security.......................27
ARTICLE FOUR Satisfaction and Discharge.........................................................................28
SECTION 4.01. Satisfaction and Discharge of Indenture........................................................28
SECTION 4.02. Application of Trust Money.....................................................................29
ARTICLE FIVE Remedies...........................................................................................30
SECTION 5.01. Events of Default...............................................................................30
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............................................31
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................32
SECTION 5.04. Trustee May File Proofs of Claim...............................................................33
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.........................34
SECTION 5.06. Application of Money Collected.................................................................34
SECTION 5.07. Limitation on Suits............................................................................34
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SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest......................35
SECTION 5.09. Restoration of Rights and Remedies.............................................................35
SECTION 5.10. Rights and Remedies Cumulative.................................................................35
SECTION 5.11. Delay or Omission Not Waiver...................................................................36
SECTION 5.12. Control by Holders of Securities...............................................................36
SECTION 5.13. Waiver of Past Defaults........................................................................36
SECTION 5.14. Undertaking for Costs..........................................................................36
SECTION 5.15. Waiver of Stay or Extension Laws...............................................................37
ARTICLE SIX The Trustee.........................................................................................37
SECTION 6.01. Certain Duties and Responsibilities............................................................37
SECTION 6.02. Notice of Defaults.............................................................................38
SECTION 6.03. Certain Rights of Trustee......................................................................38
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........................................39
SECTION 6.05. May Hold Securities............................................................................40
SECTION 6.06. Money Held in Trust............................................................................40
SECTION 6.07. Compensation and Reimbursement.................................................................40
SECTION 6.08. Disqualification; Conflicting Interests........................................................41
SECTION 6.09. Corporate Trustee Required; Eligibility........................................................41
SECTION 6.10. Resignation and Removal; Appointment of Successor..............................................41
SECTION 6.11. Acceptance of Appointment by Successor.........................................................42
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business....................................43
SECTION 6.13. Preferential Collection of Claims Against Company..............................................44
SECTION 6.14. Appointment of Authenticating Agent............................................................44
ARTICLE SEVEN Holders' Lists and Reports by Trustee and the Company.............................................45
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders......................................45
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SECTION 7.02. Preservation of Information; Communications to Holders.........................................46
SECTION 7.03. Reports by Trustee.............................................................................46
SECTION 7.04. Reports by Company.............................................................................46
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease..............................................47
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...........................................47
SECTION 8.02. Successor Corporation Substituted..............................................................48
ARTICLE NINE Supplemental Indentures............................................................................48
SECTION 9.01. Supplemental Indentures without Consent of Holders.............................................48
SECTION 9.02. Supplemental Indentures with Consent of Holders................................................49
SECTION 9.03. Execution of Supplemental Indentures...........................................................50
SECTION 9.04. Effect of Supplemental Indentures..............................................................51
SECTION 9.05. Conformity with Trust Indenture Act............................................................51
SECTION 9.06. Reference in Securities to Supplemental Indentures.............................................51
ARTICLE TEN Covenants...........................................................................................51
SECTION 10.01. Payment of Principal, Premium and Interest....................................................51
SECTION 10.02. Maintenance of Office or Agency...............................................................51
SECTION 10.03. Money for Securities Payments to Be Held in Trust.............................................53
SECTION 10.04. Additional Amounts............................................................................54
SECTION 10.05. Corporate Existence...........................................................................54
SECTION 10.06. Maintenance of Properties.....................................................................55
SECTION 10.07. Payment of Taxes and Other Claims.............................................................55
SECTION 10.08. Restrictions on Liens.........................................................................55
SECTION 10.09. Statement as to Default.......................................................................57
SECTION 10.10. Waiver of Certain Covenants...................................................................57
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ARTICLE ELEVEN Redemption of Securities.........................................................................57
SECTION 11.01. Applicability of Article......................................................................57
SECTION 11.02. Election to Redeem; Notice to Trustee.........................................................58
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.............................................58
SECTION 11.04. Notice of Redemption..........................................................................58
SECTION 11.05. Deposit of Redemption Price...................................................................59
SECTION 11.06. Securities Payable on Redemption Date.........................................................59
SECTION 11.07. Securities Redeemed in Part...................................................................60
ARTICLE TWELVE Sinking Funds....................................................................................60
SECTION 12.01. Applicability of Article......................................................................60
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.........................................61
SECTION 12.03. Redemption of Securities for Sinking Fund.....................................................61
ARTICLE THIRTEEN Meetings of Holders of Securities..............................................................61
SECTION 13.01. Purposes for Which Meetings May be Called.....................................................61
SECTION 13.02. Call Notice and Place of Meeting..............................................................62
SECTION 13.03. Persons Entitled to Vote at Meetings..........................................................62
SECTION 13.04. Quorum; Action................................................................................62
SECTION 13.05. Determination of Voting Rights; Conduct and Adjournment of Meetings..........................63
SECTION 13.06. Counting Votes and Recording Action of Meetings...............................................64
SECTION 13.07. Action Without Meeting........................................................................64
ARTICLE FOURTEEN Immunity of Incorporators, Stockholders, Officers, Directors and Employees....................64
SECTION 14.01. Liability Solely Corporate....................................................................64
ARTICLE FIFTEEN Subordination of Securities.....................................................................65
SECTION 15.01. Agreement of Subordination....................................................................65
SECTION 15.02. Limitations on Payments to Holders............................................................65
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SECTION 15.03. Payments in Bankruptcy........................................................................66
SECTION 15.04. Subrogation of Securities.....................................................................67
SECTION 15.05. Authorization by Holders......................................................................68
SECTION 15.06. Notice to Trustee.............................................................................68
SECTION 15.07. Trustee's Relation to Senior Indebtedness.....................................................69
SECTION 15.08. Acts of Holders of Senior Indebtedness........................................................69
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INDENTURE, dated as of September ___, 1999 among UtiliCorp
United, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 00 Xxxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and The Chase Manhattan
Bank, a corporation duly organized and existing under the laws of New York,
having its principal corporate trust office at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as Trustee (herein called the "Trustee').
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured, Subordinated Securities, notes or other evidences of indebtedness
(herein collectively called the "Securities", and individually called a
"Security"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done. This
Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, 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 in the United
States of America at the date of such computation;
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(4) the words "herein," "hereof," "hereto" 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) the word "or" is always used inclusively (for
example, the phrase "A or B" means "A or B or both," not "either A or B but
not both"). Certain terms used principally in certain Articles are defined in
those Articles.
"Act" when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person or Persons
authorized by the Trustee to act on behalf of the Trustee to authenticate one
or more series of Securities.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"Bearer Security" means any Security in the form for Bearer
Securities set forth in Section 203 or established pursuant to Section 201
which is payable to bearer and shall bear the legend specified in Section 205.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to a particular
location specified in the Securities or this Indenture, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which state or
national banks in such location are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, as amended, or, if at any
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time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee of a series of Securities at which at any
particular time its corporate trust business shall be administered, which
office on the date of execution of this Indenture is located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Trust Services, except
that with respect to presentation of Securities of a series for payment or
for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee of such series at which, at any particular time, its
corporate agency business shall be conducted which office or agency on the
date of execution of this Indenture is located at 00 Xxxxx Xxxxxx, Xxxx 000,
Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" includes any corporation, association,
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, specified for that purpose as contemplated by
Section 301 or any successor clearing agency registered under such Act as
contemplated by Section 305, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of such series.
"Dollar" or "$" means a dollar or other equivalent unit in
such 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 specified in Section 501.4
"Global Security" means a Security bearing the legend
specified in Section 204 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Holder" when used with respect to any Security, means in
the case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
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"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.
"Interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Corporate Secretary or an Assistant Corporate Secretary of the Company
that complies with the requirements of Section 314(c) of the Trust Indenture
Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company and who shall be acceptable to the
Trustee, that complies with the requirements of Section 314(c) of the Trust
Indenture Act.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding" when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore irrevocably 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 and any coupons thereto
appertaining; 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 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have been given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders of
Securities for quorum purposes, Securities
4
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 or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company, or any other obligor
upon the Securities or any Affiliate of the Company, or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, Corporation, partnership,
joint venture, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the
Securities of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Securities" means the preferred securities
issued from time to time by the Trust representing beneficial ownership
interests in the Trust.
"Redemption Date," when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Request" or "Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Corporate Secretary or an Assistant
Corporate Secretary, and delivered to the Trustee.
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"Responsible Officer," when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any Vice
President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed 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 of and familiarity with the particular subject.
"Securities" and "Security" have the meanings stated in the
first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" of the Company means the principal
of, premium, if any, interest on and any other payment due pursuant to any of
the following, whether outstanding at the date of execution of this Indenture
or thereafter incurred, created or assumed: (a) all indebtedness of the
Company evidenced by notes, Securities, debentures bonds, or other securities
sold by the Company for money, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any manner
by the Company or in effect guaranteed by the Company through an agreement to
purchase, contingent or otherwise, and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in any of the preceding
clauses (a) and (b); unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the
same or the assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security
or any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
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"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from time
to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America
(including the States and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
"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."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents. Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders may, alternatively, be
embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such instrument or
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by
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any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided
in Section 1306.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be given or taken by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary
(or its nominee) as Holder of any Security.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may give its proxy or
proxies to the Depositary's participants or the beneficial owners of
interests in any such Global Security, as the case may be, through such
Depositary's standing instructions and customary practices.
Subject to the next succeeding paragraph, the Company may,
in the circumstances permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of such
series. If not set by the Company prior to the first solicitation of a Holder
of Securities of such series made by any Person in respect of any such
action, or in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day prior to such first
solicitation or vote, or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701, as the case may be.
With regard to any record date for action to be taken by the Holders of one
or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. The Trustee shall fix a record date
for the purpose of determining the Persons who are beneficial owners of
interests in any permanent Global Security held by a Depositary and who are
entitled under the procedures of such Depositary to make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
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(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person executing any such instrument or writing as a
Holder of Securities, and the date of his holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person executing such instrument or writing as a Holder of
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
(e) The fact and date of execution of any such instrument
or writing, the authority of the Person executing the same, the principal
amount and serial numbers of Bearer Securities held by the Person so
executing such instrument or writing and the date of holding the same may
also be proved in any other reasonable manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice,
consent, election, 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.
SECTION 1.05. Notices, etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of Holders of a series of Securities
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, (1) the Trustee of such series by any
Holder of a Security of such series or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee of such series at its Corporate Trust Office, or (2) the
Company by the Trustee of such series or by any Holder of a Security of such
series shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Corporate
Secretary, at [address for corporate secretary] or at any other address
previously furnished in writing to the Trustee of such series by the Company.
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SECTION 1.06. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities (of any series) of any
event, (1) such notice shall be sufficiently given to Holders of Registered
Securities of such series if in writing and mailed, first-class postage prepaid,
to each Holder of a Registered Security of such series affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
Notice; and (2) such notice shall be sufficiently given to Holders of Bearer
Securities of such series if published in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and, if the Securities of such series are
then listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland and such stock exchange shall so require, in London and, if the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange outside the United
States and such stock exchange shall so require, in any other required city
outside the United States or, if not practicable, in Europe, on a Business Day
at least twice, the first such publication to be not earlier than the earliest
date and not later than the latest date prescribed for the giving of such
notice. In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice by publication to Holders of Bearer Securities given as provided
above. In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities of any
series as provided above, then such notification to Holders of such Bearer
Securities as shall be given with the approval of the Trustee for such series
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, etc.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that any published notice may be in an official
language of the country of publication.
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SECTION 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind their respective successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause.
In case any provision in this Indenture or the Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders of Securities and coupons, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
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SECTION 1.15. Appointment of Agent for Service.
By the execution and delivery of this Indenture, the Company
hereby appoint the Trustee as their agent upon which process may be served in
any legal action or proceeding which may be instituted in any Federal or State
court in the Borough of Manhattan, The City of New York, arising out of or
relating to the Securities, the coupons or this Indenture. Service of process
upon such agent at the office of such agent at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Trust Services (or such other address in the
Borough of Manhattan, The City of New York, as may be the Corporate Trust Office
of the Trustee), and written notice of said service to the Company by the Person
serving the same addressed as provided in Section 105, shall be deemed in every
respect effective service of process upon the Company in any such legal action
or proceeding, and the Company hereby submits to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such
appointment shall be irrevocable so long as the Holders of Securities or coupons
shall have any rights pursuant to the terms thereof or of this Indenture until
the appointment of a successor by the Company with the consent of the Trustee
and such successor's acceptance of such appointment. The Company further agrees
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment of such agent or successor. By the execution and delivery of
this Indenture, the Trustee hereby agrees to act as such agent and undertakes
promptly to notify the Company of receipt by it of service of process in
accordance with this Section.
SECTION 1.16. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company, or any Affiliate. No such
indenture, loan or debt agreement may be used to interpret this Indenture.
SECTION 1.17. Execution in Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons and the Global
Securities, if any, issued pursuant to this Indenture shall be in such form as
shall be established by or pursuant to a Board Resolution of the Company or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
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such Securities or coupons, as evidenced by their execution of the Securities
or coupons. If the forms of Securities or coupons of any series are
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Order of the
Company contemplated by Section 303 for the authentication and delivery of
such Securities or coupons.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article or Article Six.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in global and registered form without coupons. If so provided as
contemplated by Section 301, the Securities of a series also shall be issuable
in bearer form, with or without interest coupons attached. The definitive
Securities and coupons, if any, shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of
Authentication.
Subject to Section 614, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series referred to in the
within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
-------------------------------
Authorized Officer
SECTION 2.03. Securities in Global Form.
If Securities of a series are issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Order of the Company to be delivered pursuant to Sections 303 or 304 with
respect thereto. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Order of the Company. If the Order of the
Company pursuant to Sections 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but
14
need not be accompanied by or contained in an Officers' Certificate and need
not be accompanied by an Opinion of Counsel.
SECTION 2.04. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form, or in such other form
that is acceptable to the Depositary and the Trustee:
"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 a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
SECTION 2.05. Form of Legend for Bearer Securities.
Any Bearer Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"Any United States person who holds this Security will be
subject to limitations under the United States income tax laws, including the
limitation provided in Sections 165(j) and 1287(a) of the Internal Revenue Code
of 1986, as amended."
ARTICLE THREE
The Securities
SECTION 3.01. Amount Unlimited; Issuable in Series.
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 in or pursuant
to a Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other series
issued by the Company);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities
of the series is payable;
15
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or any method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on Registered Securities on any Interest
Payment Date;
(5) the right, if any, to extend the interest payment periods
and the duration of such extension;
(6) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable;
(7) whether Securities of such series may be redeemed, and if
so, the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) whether Bearer Securities of the series are to be
issuable;
(10) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer Security in
global form (representing all of the Outstanding Bearer Securities of the
series) payable in respect of an Interest Payment Date prior to the exchange of
such temporary Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(11) the date as of which any Bearer Securities of the series,
any temporary Bearer Security in global form and any Global Securities shall be
dated if other than the date of original issuance of the first Security of the
series to be issued;
(12) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities of
the series, if any, shall be issuable if other than the denomination of $5,000;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable (if other
than the currency of the United States of America);
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(14) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) any Events of Default or covenants of the Company
pertaining to the Securities of the series;
(17) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a Person who is a
United States Alien in respect of taxes or similar charges withheld or deducted
and, if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts;
(18) whether any Securities of the series are to be issuable
in whole or in part in the form of one or more Global Securities and, if so, (a)
the Depositary with respect to such Global Security or Securities and (b) the
circumstances under which beneficial owners of interests in any such Global
Security may exchange such interest for Securities of the same series and of
like tenor and of any authorized form and denomination, and the circumstances
under which any such exchange may occur, if other than as set forth in Section
305;
(19) if any of such Securities are to be issued in global form
and are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and terms of
such certificates, documents, or conditions; and
(20) any other terms of the series (which terms shall not be
inconsistent with the terms of this Indenture).
All Securities of any one series and the coupons appertaining
to Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto. If
any of the terms of the series are established by action taken pursuant to a
Board Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the terms of
the series. Such Board Resolution may provide general terms or parameters for
Securities of such series and may provide that the specific terms of particular
Securities of such series, and the Persons authorized to determine such terms or
parameters, may be determined in accordance with or pursuant to the Order of the
Company referred to in the third paragraph of Section 303.
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SECTION 3.02. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Registered Securities of each series
shall be issuable in denominations of $1,000 or any integral multiple thereof
and the Bearer Securities of each series, if any, shall be issuable in the
denomination of $5,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Corporate Secretary or one
of its Assistant Corporate Secretaries. The signature of any of these officers
on the Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company. Securities
and coupons bearing the manual or facsimile signatures of individuals who were
at any time relevant to the authorization thereof the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed on behalf
of the Company to the Trustee for authentication by the Trustee together with an
Order of the Company for the authentication and delivery of such Securities, and
the Trustee in accordance with such Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and only if the
Trustee shall have received from the Person entitled to receive such Bearer
Security a certificate in the form required by Section 311; provided, further,
that, with respect to Securities of a series constituting a medium term note
program, the Trustee shall authenticate and deliver Securities of such series
for original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an Order
of the Company. The maturity dates, original issue dates, interest rates and any
other terms of the Securities of such series shall be determined by or pursuant
to such Order of the Company and procedures. If provided for in such procedures,
such Order of the Company may authorize authentication and delivery pursuant to
oral instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon:
(a) the Board Resolution of the Company or indenture
supplemental hereto establishing the form of the Securities of that series
pursuant to Section 201 and the terms of the Securities of that series pursuant
to Section 301 (or, in the case of a Board Resolution, pursuant to which such
form and terms are established);
18
(b) an Officer's Certificate pursuant to Sections 201 and 301
and complying with Section 102; and
(c) an Opinion of Counsel complying with Section 102 stating,
(i) that the forms of such Securities and coupons, if any, have been established
by or pursuant to a Board Resolution of the Company or by an indenture
supplemental hereto, as permitted by Section 201 and in conformity with the
provisions of this Indenture; (ii) that the terms of such Securities have been
established by or pursuant to a Board Resolution of the Company or by an
indenture supplemental hereto, as permitted by Sections 201 and 301 and in
conformity with the provisions of this Indenture; (iii) that such Securities,
together with the coupons, if any, appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, enforceable in accordance with their respective terms, except to
the extent that the enforcement of such obligations may be subject to bankruptcy
laws or insolvency laws or other similar laws, general principles of equity and
such other qualifications as such counsel shall conclude are customary or do not
materially affect the rights of the Holders of such Securities; (iv) that all
laws and requirements in respect of the execution and delivery of the Securities
have been complied with; and (v) such other matters as the Trustee may
reasonably request. With respect to Securities of a series constituting a medium
term note program, the Trustee may conclusively rely on the documents and
opinion delivered pursuant to Sections 201 and 301 and this Section 303, as
applicable (unless revoked by superseding comparable documents or opinions) as
to the authorization of the Board of Directors of any Securities delivered
hereunder, the form thereof and the legality, validity, binding effect and
enforceability thereof.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the documents
otherwise required pursuant to the preceding clauses (a), (b) or (c) prior to or
at the time of issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such series. After
any such first delivery, any separate Request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
If such forms or terms have been so established by or pursuant
to a Board Resolution of the Company or by an indenture supplemental hereto as
permitted by Sections 201 and 301, the Trustee shall have the right to decline
to authenticate and deliver any Securities of such series:
(i) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors,
executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that
19
such action would expose the Trustee to personal liability to Holders of any
Outstanding series of Securities; or
(iii) if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties and immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Order of the Company with respect
to such series, authenticate and deliver one or more Global Securities in
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered, if in registered form, 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
instruction and (iv) shall bear a legend as required by Section 204.
Each Registered Security shall be dated the date of its
authentication. Each Global Security, each Bearer Security and any temporary
Bearer Security in global form shall be dated as of the date specified as
contemplated by Section 301.
No Security or related coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured and paid or
payment duly provided for have been detached and canceled.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon an Order of the Company the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Bearer Securities of such
series. Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the
20
temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor (at an office or agency of the Company in the case of
Bearer Securities) a like principal amount of definitive Securities of the
same series of authorized denominations and of like tenor; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the Person entitled to
receive the definitive Bearer Security a certificate in the form required by
Section 311. Until so exchanged, the temporary Securities of any series,
including temporary Securities in global form, shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of its offices or
agencies designated pursuant to Section 1002 a register (referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities of each series and of transfers and exchanges of Registered
Securities of such series. Said office or agency is hereby appointed the
security registrar (referred to as the "Security Registrar") for the purpose of
registering Registered Securities of each series and transfers and exchanges of
Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment maintained
for such purpose for such series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, Stated
Maturity and original issue date, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Registered Securities of any
series (except a Global Security representing all or a portion of such series)
may be exchanged for Registered Securities of the same series, Stated Maturity
and original issue date, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series, Stated Maturity
and original issue date, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
21
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, to register the transfer of or
to exchange Securities of any series during a period of 15 Business Days
immediately preceding the date notice is given identifying the serial numbers of
the Securities of that series called for redemption, or (ii) to issue, to
register the transfer of or to exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any Global Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 906 or 1107 for Securities
registered in the name of, and a transfer of a Global Security
22
of any series may be registered to, any Person other than the Depositary for
such Global Security or its nominee only if:
(i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time
such Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor Depositary is not appointed by
the Company within 90 days;
(ii) the Company executes and delivers to the Trustee an Order
of the Company that such Global Security shall be so exchangeable and the
transfer thereof so registrable; or
(iii) there shall have occurred and be continuing an Event of
Default or an event which, with the giving of notice or lapse of time, would
constitute an Event of Default with respect to the Securities of such series.
Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clauses (i), (ii) or
(iii) of the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, then without unnecessary delay, but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities of
that series in aggregate principal amount equal to the principal amount of such
Global Security, executed by the Company.
On or after the earliest date on which such interests may be
so exchanged, such Global Securities shall be surrendered from time to time by
the Depositary and in accordance with instructions given to the Trustee and the
Depositary (which instructions shall be in writing but need not be contained in
or accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Order of the Company with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series without service
charge. The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such Global Security to be
exchanged which (unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the Global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by Section
301) shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 Business Days before any selection of Securities of
that series to be redeemed and ending on the relevant Redemption Date; and
provided, further, that (unless otherwise specified as contemplated by Section
301) no Bearer Security delivered in exchange for a portion of a Global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such Global
Security shall be returned by the Trustee to the Depositary in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a Global
23
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date for such Security and before
the opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be payable
on such Interest Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such portion of such
Global Security is payable in accordance with the provisions of this
Indenture.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series, Stated Maturity and original issue date, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
Request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series, Stated Maturity
and original issue date, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains. In case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States; and provided, further,
that, with respect to any such coupons, interest represented thereby (but not
any additional amounts payable as provided in Section 1004), shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security, or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional
24
contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest. Interest, if any, is
paid on Bearer Securities to Holders of coupons. In case a Bearer Security of
any series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture. Any
interest on any Registered Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of
25
such series at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions
of this Indenture. (2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Person in whose name such Registered
Security is registered as the absolute owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by any notice to
the contrary. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global
26
Security or any Security represented thereby for all purposes whatsoever.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of
a Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 3.09. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities and coupons held by the Trustee shall be destroyed
and certification of their destruction delivered to the Company, unless an
Order of the Company shall direct that canceled Securities be returned to the
Company.
The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of Securities
before their Stated Maturity, for purposes of this Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with an Order that such
Securities be canceled.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section
3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 3.11. Form of Certification by a Person Entitled to
Receive a Bearer Security.
Whenever any provision of this Indenture or the form of
Security contemplates that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided substantially
in the form of the following certificate, with only such changes as shall be
approved by the Company:
[Form of Certificate to Be Given By Person Entitled to Receive
Bearer Security] Certificate
[Name of Security]
This is to certify that the above-captioned Security is not
being acquired by or on behalf of a United States person, or for offer to
resell or for resale to a United States person, or, if a beneficial interest
in the Security is being acquired by a United States person, that such person
27
is a financial institution or is acquiring through a financial institution
and that the Security is held by a financial institution that has agreed in
writing to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder and that such person or financial institution is not purchasing
for offer to resell or for resale within the United States. If this
certificate is being provided by a clearing organization, it is based on
statements provided to it by its member organizations. As used herein,
"United States" means the United States of America (including the States and
the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction, and "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof and any estate or trust the income of which is
subject to United States Federal income taxation regardless of its source. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the
above-captioned Securities in bearer form purchased from it; provided,
however, that, if the undersigned has actual knowledge that the information
contained in such a certificate is false, the undersigned will not deliver a
Security in temporary or definitive bearer form to the person who signed such
certificate notwithstanding the delivery of such certificate to the
undersigned.
We undertake to advise you by telecopy if the above
statement as to beneficial ownership is not correct on the date of delivery
of the above-captioned Securities in bearer form as to all of such
Securities. We understand that this certificate is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings. Dated: __________, 19__
ARTICLE FOUR
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon a Request of the Company cease to
be of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for, and any
right to receive additional amounts, as provided in Section 1004), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(1) either
(A) all Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 3.05, (ii) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.06, and (iv)
28
Securities and coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust dedicated
solely for such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with. In the event there are
Securities of two or more series hereunder, the Trustee shall be required to
execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of all series
as to which it is Trustee and if the other conditions thereto are met. In the
event there are two or more Trustees hereunder, then the effectiveness of any
such instrument shall be conditioned upon receipt of such instruments from
all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Sections 305, 306, 402, 1002 and 1003 shall survive.
SECTION 4.02. Application of Trust Money.
Subject to the provision of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the
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Trustee, but such money need not be segregated from other funds, except to
the extent required by law.
ARTICLE FIVE
Remedies
SECTION 5.01. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of any interest
(including any additional amounts due under Section 10.04 as specified
therein) upon any Security of that series when it becomes due and payable and
continuance of such default for a period of 30 days; or
(2) the Company defaults in the payment of the principal
(including any additional amounts due under Section 10.04 as specified
therein) of (or premium, if any, on) any Security of that series at its
Maturity and continuance of such default for a period of three Business Days
thereafter; or
(3) the Company defaults in the deposit of any sinking fund
payment when and as due by the terms of a Security of that series and
continuance of such default for a period of three Business Days thereafter;
(4) the Company defaults in the performance or breach of
any covenant or warranty of the Company, as the case may be, in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in or pursuant to this Indenture solely for the
benefit of one or more series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, 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
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that series) or
under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (including this Indenture), whether such indebtedness
now exists or shall hereafter be created, which default shall constitute a
failure to pay in excess of $5,000,000 of the principal or interest of such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such indebtedness
in an amount in excess of $5,000,000 becoming or being declared due and
payable prior to the date
30
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled within a period of 90 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 25% in principal
amount of the Outstanding Securities of that series 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 Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee assigned to Global Trust Services (or any
successor division or department 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;
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of any of the
Company, in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the Company, or
any of its Affiliates 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 for any of the Company, or
for any substantial part of the property of the Company, or ordering the
liquidation or winding up of the affairs of any of the Company 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 90 consecutive days;
(7) the commencement by the Company of a 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 it in a 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 in respect of it or any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or its admission in writing of its inability to pay its debts
generally as they become due, or its taking of corporate action in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such
31
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(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 any other amounts due to the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission and annulment shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such default
continues for a period of three Business Days, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities
and coupons, the whole amount then due and payable on such Securities and
coupons for principal (and premium, if any) and interest, with interest on
any overdue principal
32
(and premium, if any) and on any overdue interest, to the extent that payment
of such interest shall be legally enforceable, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due to the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, or any other obligor
upon the Securities or the property of the Company, or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company or any other obligor for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607) and of the Holders of Securities and coupons allowed in
such judicial proceeding; and (ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder of Securities and coupons to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders of Securities and
coupons, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
33
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the Securities and
coupons in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities and coupons for principal (and
premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or
otherwise with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
34
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series; it
being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture except in the manner herein or therein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Securities and coupons shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise shall, not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
35
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, expose the Trustee to personal liability or be
unduly prejudicial to Holders not joined therein; and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default:
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series; or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any
36
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security or the payment
of any coupon on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series:
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (2) in
the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities
of any series has occurred and is continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
37
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section; (2) the Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; (3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and (4) no provision
of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the Trustee shall
transmit, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, notice of all such defaults hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series
or in the payment of any sinking fund installment with respect to Securities
of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.03. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other paper
or
38
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Request or Order and any
resolution of the Board of Directors of the Company shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) except as otherwise provided in Section 501(5), the
Trustee shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as Trustee
unless either (1) a Responsible Officer of the Trustee assigned to Global
Trust Services (or any successor division or department of the Trustee) shall
have actual knowledge of the Event of Default or (2) written notice of such
Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such Securities.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) and in any coupons shall be
taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their
39
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, or of the Securities or coupons, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and
coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company or an Affiliate of either with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement or advance as
may be attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on particular Securities.
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SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b)
of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, or any other Person permitted
by the Trust Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of
at least $50,000,000, is subject to supervision or examination by Federal,
State or District of Columbia authority and is not otherwise ineligible under
Section 310(a)(5) of the Trust Indenture Act. If such Corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company or
by any such Holder; or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; then, in any such case, (i) the Company, by Board
Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all other similarly situated Holders, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 611, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such Series are
issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
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successor Trustee, without any further act, deed or conveyance shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or on the request of the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or on the request of
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien provided for in Section 607,
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article,
43
without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of Section 311 and any other provision of the Trust Indenture
Act regarding the collection of claims against the Company (or any such other
obligor).
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of not less than $50,000,000 and subject
to supervision or examination by Federal, State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an
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Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall (i) mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issuable as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent
has its principal office if such office is located outside the United States.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section. The Trustee agrees to
pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments in accordance with the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form: This is one of
the Securities of the series referred to in the within- mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By ______________________________
As Authenticating Agent
By ______________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and the Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.
In accordance with Section 312(a) of the Trust Indenture Act,
the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company, or
any of its Paying Agents other than the Trustee, as to
45
the names and addresses of the Holders of Securities as of the preceding May
15 or November 15, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to
Holders.
(a) The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of any of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312 of the Trust Indenture
Act.
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 with respect to
any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the
date of this Indenture. (b) The Trustee shall transmit the reports
required by Section 313(b) of the Trust Indenture Act at the times
specified therein. (c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
SECTION 7.04. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of said sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
46
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. 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) the Corporation formed by any such consolidation or into
which it is merged or the Person which acquires by conveyance or transfer, or
which leases, its properties and assets 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, in the case of the Company, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities; in the
case of the Company the performance of every covenant of this Indenture on the
part of the Company;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; 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 complies with this Section 801 and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
47
SECTION 8.02. 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
Company's properties and assets substantially as an entirety in accordance with
Section 801, the successor Corporation formed by such consolidation or into
which it 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, as applicable, under this Indenture with the same effect as if such
successor Corporation had been named as the Company, as applicable, herein, and
thereafter, except in the case of a lease, the predecessor Corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the
Company and the assumption by any such successor of the covenants of the
Company, herein and in the Securities and coupons; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal (or premium,
if any) on Registered Securities or of principal (or premium, if any) or any
interest on Bearer Securities, to permit Registered Securities to be exchanged
for Bearer Securities or to permit the issuance of Securities in uncertificated
form,
48
provided any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series, to contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
or
(10) to conform this Indenture to any amendments to the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security or coupon affected
thereby:
(1) change the Stated Maturity of the principal of, or of any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the method of calculating the rate of
interest thereon, or change any obligation of the Company to pay
49
additional amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment in the United States where, or
the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1304 for quorum or voting; or
(3) change any obligation of the Company to maintain an office
or agency in each Place of Payment, or any obligation of the Company to maintain
an office or agency outside the United States pursuant to Section 1002; or
(4) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder of a Security or coupon with respect to changes in the references
to "the Trustee" and concomitant changes in this Section and Section 1009, or
the deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof. The Company shall have the right to set a record date for the
solicitation of any consents under this Article Nine, which record date shall be
set in accordance with Section 104.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which
50
affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance
with the terms of the Securities, any coupons appertaining thereto and this
Indenture. Any interest due on Bearer Securities on or before Maturity, other
than additional amounts, if any, payable as provided in Section 1004 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series (but,
except as otherwise provided below, unless such Place of Payment is located
outside the United States, not Bearer Securities) may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in
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respect of the Securities of that series and this Indenture may be served.
The Company initially hereby appoints the Trustee, its office or agency for
each of said purposes. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Securities of such series
and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of such
series pursuant to Section 1004); provided, however that if the Securities of
such series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or Luxembourg or
any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange. 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 in respect
of any series of Securities or shall fail to furnish the Trustee with the
address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at the place specified for the purpose
pursuant to Section 301 or, if no such place is specified, at the main office
of the Trustee in London, and the Company hereby appoints the Trustee as its
agent to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest in U.S. dollars
(including additional amounts payable in respect thereof) on any Bearer Security
may be made at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York if (but only if) payment of the full amount of
such principal, premium, interest or additional amounts at all offices outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
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SECTION 10.03. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal of (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
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 Order of the Company 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 terms 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 sums.
Any sums deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Request of the
Company, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or any coupon appertaining thereto 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
53
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once in an Authorized Newspaper in
each Place of Payment or mailed to each such Holder, or both, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04. Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Security of any
series or any coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of principal of (or premium, if any) or interest on, or in respect of,
any Security of any series or any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be deemed
to include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or the related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 10.05. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and its rights (charter and statutory) and franchises.
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SECTION 10.06. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business, or the business of the Subsidiaries, to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties or disposing the Company of them if such
discontinuance or disposal is, in the judgment of the Company, desirable in the
conduct of its business or the business of the Subsidiaries and not
disadvantageous in any material respect to the Holders of Securities.
SECTION 10.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it, or upon the income, profits
or property of the Company or any of the Subsidiaries, 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 of the Subsidiaries; provided, however,
that none of the Company or any of the Subsidiaries shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
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SECTION 10.08. Statement as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company will deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time would become an Event of Default pursuant to clause (4) of Section
501.
SECTION 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1006 and 1007 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of all of the Securities of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 11.03. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series (other than Securities of such series held by the
Company), not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise provided
in the Securities of a series, partial redemptions must be in an amount not less
than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case. A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest, if any, on,
all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002); and provided,
further, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside of the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires with respect to any Registered Security, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series, Stated Maturity and of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
Except as otherwise specified as contemplated by Section 301,
if a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary in global form, without
service charge, a new Global Security or Securities of the same series, Stated
Maturity and of any authorized denomination as requested by the Depositary, in
an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series
59
is herein referred to as an "optional sinking fund payment." If provided for
by the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series
as provided for by the terms of Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and stating the basis for such credit
and that such Securities have not previously been so credited and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 13.01. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
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SECTION 13.02. Call Notice and Place of Meeting.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 13.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned
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meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 13.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting
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to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.06. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 13.07. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
SECTION 14.01. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part thereof,
or for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer, director
or employee, as such, past, present or future of the Company or of any
predecessor or successor Corporation (either directly or through the Company or
a predecessor or successor Corporation of either of them), whether by virtue of
any constitutional provision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly agreed and
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understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer, director or employee,
past, present or future, of the Company or of any predecessor or successor
Corporation of either of them, either directly or indirectly through the
Company, or any predecessor or successor Corporation of either of them,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities; provided, however, that nothing
in this Section 1401 shall be interpreted to relieve of its corporate
obligations set forth in this Indenture by virtue of it being a stockholder
of the Company.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 15.01. Agreement of Subordination.
The Company covenants and agrees, and each Holder of
Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article Fifteen; and each Holder of Securities, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest
on all Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 15.02. Limitations on Payments to Holders.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any Senior
Indebtedness continuing beyond the period of grace, if any, specified in the
instrument evidencing such Senior Indebtedness, unless and until such default
shall have been cured or waived or shall have ceased to exist, and in the event
that the maturity of any Senior Indebtedness has been accelerated because of a
default, then no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or premium, if
any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is prohibited
by the preceding paragraph of this Section 15.02, such payment shall be held in
trust for the benefit of, and shall be paid over or
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delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the holders of
the Senior Indebtedness (or their representative or representatives or a
trustee) notify the Trustee within 90 days of such payment of the amounts
then due and owing on the Senior Indebtedness and only the amounts specified
in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness.
SECTION 15.03. Payments in Bankruptcy.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Securities; and upon any
such dissolution or winding-up or liquidation or reorganization any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provisions of this Article
Fifteen, shall by paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of
Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the Holders of the Securities before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words, "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or
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securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article Fifteen with respect to the Securities
to the payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in this Indenture. Nothing in Section 15.02 or in this Section 15.03
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
SECTION 15.04. Subrogation of Securities.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Fifteen, and no payment over
pursuant to the provisions of this Article Fifteen, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article Fifteen are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Securities
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fifteen
of the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee, subject to the provisions of
Section 601, and the Holders of the Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount hereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
SECTION 15.05. Authorization by Holders.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fifteen. Notwithstanding
the provisions of this Article Fifteen or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article Fifteen,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the principal office of the Trustee from the Company
or a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided that if the Trustee shall not have received the
notice provided for in this Section 15.06 at least two business days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Debenture), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two business days prior to such date.
The Trustee, subject to the provisions of Section 601, shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
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held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Fifteen, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 15.07. Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fifteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 601, the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Company or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article Fifteen or otherwise.
SECTION 15.08. Acts of Holders of Senior Indebtedness.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Fifteen or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UTILICORP UNITED, INC.
By:
------------------------------------
Name: [ ]
Attest:
Title: President
The Chase Manhattan Bank, as Trustee
By:
------------------------------------
Name:
Attest:
Title: Senior Trust Officer
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