EXHIBIT 4.3
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NEW NISOURCE INC.
TO
THE CHASE MANHATTAN BANK
AS TRUSTEE
________________
FORM
OF
INDENTURE
DATED AS OF __________ ___, 2000
________________
PROVIDING FOR ISSUANCE OF DEBT SECURITIES
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New NiSource Inc.
Reconciliation and Tie between Trust Indenture Act of 1939, as
amended, and
Indenture, dated as of ________ __, 2000
Trust Indenture Indenture
Act Section Section(s)
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(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
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
(S)318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
2
NOTE:This Reconciliation and Tie shall not, for any purpose, be deemed
to be a part of the Indenture.
3
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . -1-
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . -1-
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . -8-
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . -9-
SECTION 104. ACTS OF HOLDERS; RECORD DATES . . . . . . . . -10-
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . -12-
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER . . . -13-
SECTION 107. LANGUAGE OF NOTICES, ETC. . . . . . . . . . . -14-
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT . . . . . . -14-
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . -14-
SECTION 110. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . -14-
SECTION 111. SEPARABILITY CLAUSE . . . . . . . . . . . . . -14-
SECTION 112. BENEFITS OF INDENTURE . . . . . . . . . . . . -14-
SECTION 113. GOVERNING LAW . . . . . . . . . . . . . . . . -15-
SECTION 114. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . -15-
SECTION 115. APPOINTMENT OF AGENT FOR SERVICE . . . . . . . -15-
SECTION 116. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS -16-
SECTION 117. EXECUTION IN COUNTERPARTS . . . . . . . . . . -16-
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . . . . . . -16-
SECTION 201. FORMS GENERALLY . . . . . . . . . . . . . . . -16-
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION . . . . . . . . . . . . . . . -17-
SECTION 203. SECURITIES IN GLOBAL FORM . . . . . . . . . . -17-
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES . . . . . -17-
SECTION 205. FORM OF LEGEND FOR BEARER SECURITIES . . . . . -18-
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . -18-
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . -18-
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . -21-
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING . . . . . . . . . . . . . . . . . . . -21-
SECTION 304. TEMPORARY SECURITIES . . . . . . . . . . . . . -24-
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE . . . . . . . . . . . . . -25-
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES . . . . . . . . . . . . . . . . . -28-
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED . . . . . . . . . . . . . . . . . . -30-
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . -32-
SECTION 309. CANCELLATION . . . . . . . . . . . . . . . . . -32-
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . -33-
SECTION 311. FORM OF CERTIFICATION BY A PERSON ENTITLED TO
RECEIVE A BEARER SECURITY . . . . . -33-
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ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . . . . . . -34-
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . -34-
SECTION 402. APPLICATION OF TRUST MONEY . . . . . . . . . . -36-
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . -36-
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . -36-
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT . . . . . . . . . . . . . -38-
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE . . . . . . -39-
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . -40-
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS . . . . . -41-
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . . . -41-
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . -42-
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST . . -42-
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . . -43-
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . -43-
SECTION 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . . -43-
SECTION 512. CONTROL BY HOLDERS OF SECURITIES . . . . . . . -43-
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . -44-
SECTION 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . -44-
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS . . . . . . . -44-
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . -45-
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . -45-
SECTION 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . . -46-
SECTION 603. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . -47-
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES . . . . . . . . . . . . -48-
SECTION 605. MAY HOLD SECURITIES . . . . . . . . . . . . . -48-
SECTION 606. MONEY HELD IN TRUST . . . . . . . . . . . . . -48-
SECTION 607. COMPENSATION AND REIMBURSEMENT . . . . . . . . -48-
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS . . . -49-
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . -49-
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR . . . . . . . . . . . . . . . . . . -50-
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . -52-
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS . . . . . . . . . . . -53-
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY . . . . . . . . . . . . . . -53-
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT . . . . . -53-
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY -56-
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS . . . . . . . . . . . . -56-
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS . . . . . . . . . . . . . . -56-
SECTION 703. REPORTS BY TRUSTEE . . . . . . . . . . . . . . -56-
SECTION 704. REPORTS BY COMPANY . . . . . . . . . . . . . . -57-
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ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE . . . . . . . . . . . . -58-
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS . . . . . . . . . . . . . . . -58-
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . -59-
SECTION 803. ASSUMPTION BY SUBSIDIARY . . . . . . . . . . . -59-
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . -59-
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS . . . . . . . . . . . . . . -59-
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS . . . . . . . . . . . . . . . . . . . -61-
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . -62-
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . -62-
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . -63-
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES . . . . . . . . . . . . . . . . . -63-
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . -63-
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . -63-
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . -63-
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST . . . . . . . . . . . . . . . -65-
SECTION 1004. ADDITIONAL AMOUNTS . . . . . . . . . . . . . -66-
SECTION 1005. CORPORATE EXISTENCE . . . . . . . . . . . . . -67-
SECTION 1006. MAINTENANCE OF PROPERTIES . . . . . . . . . . -67-
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . -67-
SECTION 1008. RESTRICTIONS ON LIENS . . . . . . . . . . . . -68-
SECTION 1009. STATEMENT AS TO DEFAULT . . . . . . . . . . . -70-
SECTION 1010. WAIVER OF CERTAIN COVENANTS . . . . . . . . . -70-
ARTICLE ELEVEN REDEMPTION OF SECURITIES . . . . . . . . . . . . . -70-
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . -70-
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . -71-
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED . . . . . . . . . . . . . -71-
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . -72-
SECTION 1105. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . -72-
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE . . . . -72-
SECTION 1107. SECURITIES REDEEMED IN PART . . . . . . . . . -73-
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . -74-
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . -74-
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES . . . . . . . . . . . . -74-
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND . . -75-
ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . -75-
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . -75-
SECTION 1302. CALL NOTICE AND PLACE OF MEETING . . . . . . -75-
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . -76-
SECTION 1304. QUORUM; ACTION . . . . . . . . . . . . . . . -76-
-iii-
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . -77-
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS . . . . . . . . . . . . . . . . . . -78-
SECTION 1307. ACTION WITHOUT MEETING . . . . . . . . . . . -78-
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES . . . -79-
SECTION 1401. LIABILITY SOLELY CORPORATE . . . . . . . . . -79-
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INDENTURE, dated as of ________ __, 2000 between New NiSource
Inc., a corporation duly organized and existing under the laws of the
State of Indiana (herein called the "Company"), having its principal
office at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and The
Chase Manhattan Bank, a corporation duly organized and existing under
the laws of the State of New York, having its principal corporate
trust office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
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 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles 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;
(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.
-2-
"Board of Directors" means either 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 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.
"Consolidated Net Tangible Assets" means the total amount of
assets appearing on a consolidated balance sheet of Company and its
Subsidiaries other than the Utilities less, without duplication, the
following:
(a) all current liabilities (excluding any thereof which
are by their terms extendable or renewable at the sole option of
the obligor thereon without requiring the consent of the obligee
to a date more than 12 months after the date of determination);
(b) all reserves for depreciation and other asset valuation
reserves but excluding any reserves for deferred Federal income
taxes arising from accelerated amortization or otherwise;
(c) all intangible assets such as goodwill, trademarks,
trade names, patents and unamortized debt discount and expense
carried as an asset on said balance sheet; and
(d) all appropriate adjustments on account of minority
interests of other Persons holding Common Stock in any
Subsidiary.
Consolidated Net Tangible Assets shall be determined in
accordance with generally accepted accounting principles and as of a
-3-
date not more than 90 days prior to the happening of the event for
which such determination is being made.
"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 _______________________________.
"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.
"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.
"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.
-4-
"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
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, 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 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
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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 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.
"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.
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"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 or 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.
"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.
"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
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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.
"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.
"Utility" means any subsidiary of the Company that is subject to
regulation by a federal or state utility regulatory commission or
other utility regulatory body.
"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 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee 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
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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 certifi-
cate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
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or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, con-
sent, 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 Thirteen, 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 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
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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.
(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
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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, con-
sent, 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 105. NOTICES, ETC., TO TRUSTEE AND 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 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, or at any
other address previously furnished in writing to the Trustee of
such series by the Company.
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SECTION 106. 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
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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 107. 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.
SECTION 108. 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 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. 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 112. 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.
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SECTION 113. 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 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities 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.
SECTION 115. APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company
hereby appoints the Trustee as its 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.
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SECTION 116. 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 thereof. No
such indenture, loan or debt agreement may be used to interpret this
Indenture.
SECTION 117. 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 201. 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 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.
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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 202. 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 203. 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 need not
be accompanied by or contained in an Officers' Certificate and need
not be accompanied by an Opinion of Counsel.
SECTION 204. 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:
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"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 205. 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 301. 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 Securi-
ties of the series is payable;
(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
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interest shall be payable and the Regular Record Date for the
interest payable on Registered Securities on any Interest Payment
Date;
(5) the place or places where the principal of (and
premium, if any) and interest, if any, on Securities of the
series shall be payable;
(6) 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;
(7) 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;
(8) whether Bearer Securities of the series are to be
issuable;
(9) 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;
(10) 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;
(11) 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;
(12) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if
-19-
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);
(13) 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;
(14) 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;
(15) any Events of Default or covenants of the Company
pertaining to the Securities of the series;
(16) 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;
(17) 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;
(18) 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
(19) 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.
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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.
SECTION 302. 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 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its 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
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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);
(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
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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
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.
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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 304. 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 unreason-
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able delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the
temporary Securities of such series 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 305. 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.
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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 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 Com-
pany 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
-26-
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 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.
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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 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 306. 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
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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 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.
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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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any 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
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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 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.
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SECTION 308. 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 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 309. 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.
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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 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
SECTION 311. 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 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
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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 401. 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
Xxxxxxx 000, (xx) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Xxxxxxx 000, (xxx) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section
1106, and (iv) Securities and coupons for whose payment money has
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theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(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.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provision of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of
the Securities, 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 Trustee, but
such money need not be segregated from other funds, except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of any interest
(including any additional amounts due under Section 1004 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 1004 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; or
(4) the Company defaults in the performance or breach of
any covenant or warranty of the Company 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
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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 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; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
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
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official for the Company or for any substantial part of the
property of the Company, or ordering the liquidation or winding
up of the affairs 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; or
(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 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 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 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:
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(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 513.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(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 (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
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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 or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company 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;
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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.
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 505. 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 506. 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
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THIRD: To the Company.
SECTION 507. 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;
(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 provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security 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.
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SECTION 509. 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 510. 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.
SECTION 511. 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 512. 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
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(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series 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 514. 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 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 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
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extension law wherever enacted, now or at any time hereafter in force
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(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.
(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 wilful misconduct, except that:
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
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(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 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit,
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.
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SECTION 603. 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 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
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(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 604. 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 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 605. 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 and its
Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. 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
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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 xxxx-
xxxxx 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.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If at any time the Trustee shall fail to comply with the
obligations imposed upon it by the provisions of Section 310(b) of the
Trust Indenture Act with respect to Securities of any series after
written request therefor by the Company or by any Holder of a Security
of such series who has been a bona fide Holder of a Security of such
series for at least six months then, (i) the Company, by or pursuant
to a Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to
Section 315(e) of the Trust Indenture Act, any Holder who has been a
bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees. The Trustee shall comply with the
terms of Section 310(b) of the Trust Indenture Act.
SECTION 609. 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
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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 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article 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
(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
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or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee 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 a 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.
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SECTION 611. 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.
Thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or 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
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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 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
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 614. 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
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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 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
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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 designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By_______________________________
As Authenticating Agent
By_______________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. 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 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 702. 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 either of them shall be
held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders 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 703. 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.
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(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 704. 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
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.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
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 the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of
the Company;
(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.
The Company covenants and agrees that if, upon any consolidation
or merger of the Company with or into any other Corporation, or upon
any consolidation or merger of any other Corporation with or into the
Company, or upon any sale or conveyance of all or substantially all of
the property and assets of the Company to any other Corporation, any
property of the Company or any Subsidiary or any indebtedness issued
by any Subsidiary owned by the Company or by any Subsidiary
immediately prior thereto would thereupon become subject to any
mortgage, security interest, pledge, lien or other encumbrance not
permitted by Section 1008 hereof, the Company, prior to or
concurrently with such consolidation, merger, sale or conveyance, will
by indenture supplemental hereto effectively secure the Securities
then Outstanding (equally and ratably with (or prior to) any other
indebtedness of or guaranteed by the Company or such Subsidiary then
entitled thereto) by a direct lien on such property of the Company or
any Subsidiary or such indebtedness issued by a Subsidiary, prior to
all liens other than any theretofore existing thereon.
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SECTION 802. 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 under this Indenture with the same effect as if such successor
Corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
SECTION 803. ASSUMPTION BY SUBSIDIARY.
A Subsidiary may directly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of
(premium, if any) and interest on all the Securities and any coupons
appertaining thereto and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed.
Upon any such assumption, such Subsidiary shall succeed to and be
substituted for and may exercise every right and power of the Company
under this Indenture with the same effect as if such Subsidiary had
been named as the Company herein and the Company shall be released
from its liability as obligor on the Securities. No such assumption
shall be permitted unless such Subsidiary has delivered to the
Trustee an Officers' Certificate of such Subsidiary and an Opinion of
Counsel for such Subsidiary, each stating that such assumption and
supplemental indenture comply with this Article, that all conditions
precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another 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
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(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, 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
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(10) to effect assumption by a Subsidiary pursuant to
Section 803; or
(11) to conform this Indenture to any amendments to the
Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or 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 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 Out-
standing 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
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(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 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 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
affects the Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining
thereto shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities, 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 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series
(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 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
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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 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of
the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly 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.
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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 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 1004. 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
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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 1005. 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.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business, or used or useful in 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 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 1007. 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 any
of the Subsidiaries, 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 1008. RESTRICTIONS ON LIENS.
(a) So long as any Securities remain outstanding, the Company
will not, nor will the Company permit any Subsidiary other than a
Utility to, issue, assume or guarantee any debt for money borrowed
(hereinafter in this Section 1008 referred to as "Debt"), secured by
any mortgage, security interest, pledge, lien or other encumbrance
(hereinafter in this Section 1008 called "mortgage" or "mortgages")
upon any property of the Company or any such Subsidiary (other than a
Utility), except indebtedness issued by any such Subsidiary and owned
by the Company or any other such Subsidiary (whether such property or
indebtedness is now owned or hereafter acquired), without in any such
case effectively securing, prior to or concurrently with the issuance,
assumption or guarantee of any such Debt, the Securities (together
with, if the Company shall so determine, any other indebtedness of or
guaranteed by the Company or such Subsidiary ranking equally with the
Securities and then existing or thereafter created) equally and
ratably with (or prior to) such Debt; PROVIDED, HOWEVER, that the
foregoing restrictions shall not apply to nor prevent the creation or
existence of:
(i) mortgages on any property, acquired, constructed or
improved by the Company or any of the Subsidiaries other than the
Utilities after the date of this Indenture, and any improvements
thereon, accessions thereto or other property acquired or
constructed for use in connection therewith or related thereto,
which are created or assumed prior to or contemporaneously with,
or within 180 days after, such acquisition or completion of such
construction or improvement, or within one year thereafter
pursuant to a firm commitment for financing arranged with a
lender or investor within such 180-day period, to secure or
provide for the payment of all or any part of the purchase price
of such property or the cost of such construction or improvement
incurred after the date of this Indenture, or, in addition to
mortgages contemplated by clauses (ii) and (iii) below, mortgages
on any property existing at the time of acquisition thereof,
PROVIDED THAT the mortgages shall not apply to any property
theretofore owned by the Company or any such Subsidiary other
than, in the case of any such construction or improvement, (1)
unimproved real property on which the property so constructed or
the improvement is located, (2) other property (or improvements
thereon) which is an improvement to or is acquired or constructed
for use in connection therewith or related thereto, (3) any right
and interest under any agreement or other documents relating to
the property being so constructed or improved or such other
property and (4) the stock of any Subsidiary created or
maintained for the primary purpose of owning the property so
constructed or improved;
(ii) existing mortgages on any property or indebtedness of
a Person which is merged with or into or consolidated with the
Company or a Subsidiary;
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(iii) mortgages on property or indebtedness of a Person
existing at the time such Person becomes a Subsidiary;
(iv) mortgages to secure Debt of a Subsidiary to the
Company or to another Subsidiary other than a Utility;
(v) mortgages in favor of the United States of America, any
State, any foreign country or any department, agency or
instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price of the cost of constructing or
improving the property subject to such mortgages, including,
without limitation, mortgages to secure Debt of the pollution
control or industrial revenue bond type;
(vi) mortgages to secure Debt of the Company or any
Subsidiary maturing within 12 months from the creation thereof
and incurred in the ordinary course of business;
(vii) mortgages on any property (including any natural gas,
oil or other mineral property) to secure all or part of the cost
of exploration, drilling or development thereof or to secure Debt
incurred to provide funds for any such purpose;
(viii) mortgages existing on the date of this Indenture;
and
(ix) mortgages for the purposes of extending, renewing or
replacing in whole or in part Debt secured by any mortgage
referred to in the foregoing clauses (i) to (viii), inclusive, or
this clause (ix); PROVIDED, HOWEVER, that the principal amount of
Debt secured thereby shall not exceed the principal amount of
Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
shall be limited to all or a part of the property or indebtedness
which secured the mortgage so extended, renewed or replaced (plus
improvements on such property).
(b) The provisions of subsection (a) of this Section 1008 shall
not apply to the issuance, assumption or guarantee by the Company or
any Subsidiary of Debt secured by a mortgage which would otherwise be
subject to the foregoing restrictions up to an aggregate amount which,
together with all other Debt of the Company and the Subsidiaries other
than the Utilities secured by mortgages (other than mortgages
permitted by subsection (a) of this Section 1008 which would otherwise
be subject to the foregoing restrictions), does not at the time exceed
5% of Consolidated Net Tangible Assets.
(c) If at any time the Company or any Subsidiary other than the
Utilities shall issue, assume or guarantee any Debt secured by any
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mortgage and if subsection (a) of this Section 1008 requires that the
Securities be secured equally and ratably with such Debt, the Company
will promptly deliver to the Trustee an Officers' Certificate stating
that the covenant of the Company contained in subsection (a) of this
Section has been complied with.
SECTION 1009. 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 signer
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 1010. 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 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of 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 1103. 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.
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SECTION 1104. 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,
(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 1105. 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 1106. 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
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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.
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 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires 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
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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 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver 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
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Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and 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 1301. 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.
SECTION 1302. 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.
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(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 1303. 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 1304. 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 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
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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 1305. 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
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respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting 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 1306. 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 1307. 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.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 1401. 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 the Company), 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 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, either directly or indirectly through the Company or any
predecessor or successor Corporation, 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.
____________________
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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.
NEW NISOURCE INC.
[SEAL] By:_______________________________________
Name:
Attest: Title:
------------------------------
THE CHASE MANHATTAN BANK, AS TRUSTEE
[SEAL] By:_________________________________
Name:
Attest: Title:
By:___________________________
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