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EXHIBIT 4(a)
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AMERICAN GENERAL CORPORATION
TO
BANKERS TRUST COMPANY
TRUSTEE
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Senior Indenture
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DATED AS OF NOVEMBER 15, 1997
(SENIOR DEBT SECURITIES)
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock Warrants . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Designated Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Community . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 6
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
mandatory sinking fund payment . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
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Xxx Xxxx Xxxxxxx Day . . . . . . . . . . . . . . . . . . . . . . . . . . 6
New York Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
optional sinking fund payment . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Preferred Stock Warrants . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . .10
U.S. Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . .10
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . .11
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 105. Notices, etc., to Trustee and Company. . . . . . . . . . . . .14
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . .14
SECTION 107. Language of Notices, etc. . . . . . . . . . . . . . . . . . . .15
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . . . . . . . .15
SECTION 109. Effect of Headings and Table of Contents. . . . . . . . . . . .15
SECTION 110. Successors and Assigns. . . . . . . . . . . . . . . . . . . . .15
SECTION 111. Separability and Saving Clauses. . . . . . . . . . . . . . . .16
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . .16
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 115. Judgment Currency. . . . . . . . . . . . . . . . . . . . . . .16
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities. . . . . . . . . . . . . . . . . . . . . .17
SECTION 202. Form of Trustee's Certificate of Authentication. . . . . . . .18
SECTION 203. Securities in Global Form. . . . . . . . . . . . . . . . . . .18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . .19
SECTION 302. Currency; Denominations. . . . . . . . . . . . . . . . . . . .23
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . .23
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . .25
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . .26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . .29
SECTION 307. Payment of Interest and Certain Additional Amounts;
Rights Preserved. . . . . . . . . . . . . . . . . . . .30
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . .32
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . .33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . .33
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . .35
ARTICLE FIVE
REMEDIES
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. . . . . . . . . . . . . . . . .40
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . .41
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SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . .41
SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts. . . . . . . .42
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . .42
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . .42
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . .42
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . . . . .43
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . .43
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . .44
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . .44
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . .44
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . .45
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . .46
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . . .47
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . .47
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . .47
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . .48
SECTION 608. Disqualifications; Conflicting Interests. . . . . . . . . . . .48
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . .49
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . .49
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . . .50
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 613. Appointment of Authenticating Agent. . . . . . . . . . . . . .52
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders of Registered Securities. . . . . . . . . . . .54
SECTION 702. Preservation of Information; Communications to Holders. . . . .54
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . .54
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . .55
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales and
Conveyances Permitted Subject to Certain Conditions. .56
SECTION 802. Rights and Duties of Successor Entity. . . . . . . . . . . . .56
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . . . . . .57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders. . . . . . .57
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . .60
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . .62
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . .62
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . .62
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . . .62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and any Premium, Interest and
Additional Amounts. . . . . . . . . . . . . . . . . . .62
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . .63
SECTION 1003. Money for Securities Payments to be Held in Trust. . . . . . .64
SECTION 1004. Additional Amounts. . . . . . . . . . . . . . . . . . . . . . .65
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults. . . . .66
SECTION 1006. Corporate Existence. . . . . . . . . . . . . . . . . . . . . .66
SECTION 1007. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . .67
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . .67
SECTION 1009. Defeasance of Certain Obligations. . . . . . . . . . . . . . .68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . .69
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . .70
SECTION 1103. Selection by Trustee of Securities to be Redeemed. . . . . . .70
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . .70
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . .72
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . . . . . .72
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . .73
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . .73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. . . . .74
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . .74
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . . . .75
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called. . . . . . . . . . .75
SECTION 1402. Call, Notice and Place of Meetings. . . . . . . . . . . . . . .75
SECTION 1403. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . .76
SECTION 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . .76
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . .77
SECTION 1406. Counting Votes and Recording Action of Meetings. . . . . . . .78
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies. . . . . . . . . . . . . . . .78
SECTION 1502. Conversion or Exchange of Securities . . . . . . . . . . . . .79
SECTION 1503. No Recourse Against Others . . . . . . . . . . . . . . . . . .79
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SENIOR INDENTURE, dated as of November 15, 1997, between AMERICAN
GENERAL CORPORATION, a Texas corporation (hereinafter called the "Company"),
having its principal office at 0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000 and
BANKERS TRUST COMPANY, a New York banking corporation, as Trustee (hereinafter
called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities, unlimited as to principal amount, to bear such
rates of interest, if any, to mature at such time or times, to be issued in one
or more series and to have such other provisions as shall be fixed as
hereinafter 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
(as hereinafter defined) and the rules and regulations of the Commission (as
hereinafter defined) 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 (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any 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 in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States 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 at the date of such
computation;
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(e) the term "day," unless designated as a "Business
Day," means a calendar day.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts that are
required by the Securities of a particular series or by or pursuant to
a supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities, under the circumstances
specified therein, to be paid by the Company in respect of certain
taxes, duties, assessments or other governmental charges imposed on
certain Holders and which are owing to such Holders.
"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 authorized by the
Trustee pursuant to Section 613 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"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 Authorized 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 established
pursuant to Section 201 which is payable to bearer.
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"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, delivered to the
Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Securities, means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in that Place
of Payment or such other location are authorized or obligated by law
or executive order to close except as may otherwise be provided in the
form of Securities of any particular series pursuant to the provisions
of this Indenture.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by an independent public accountant or a
firm of independent public accountants who may be the independent
public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountant or firm shall be
entitled to rely upon an Opinion of Counsel as to the interpretation
of any legal matters relating to such certificate.
"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.
"Common Stock" means the Common Stock, par value $.50 per
share, of the Company or any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no
par value to par value. Subject to the anti-dilution provisions of any
convertible Security, however, shares of Common Stock issuable on
conversion of a Security shall include only shares of the class
designated as Common Stock of the Company at the date of the
supplemental indenture, Board Resolution or other instrument
authorizing such Security or shares of any class or classes resulting
from any reclassification or reclassifications thereof and which have
no preference in respect of the payment of dividends or the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to
redemption by the Company, provided that if at any time there shall be
more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such
reclassifications bears to the total number of shares of such classes
resulting from all such reclassifications.
"Common Stock Warrants" means warrants to purchase Common
Stock.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor entity shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor entity.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the Vice Chairman, the President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to
include any Vice President of the Company whether or not designated by
a number or a word or words added before or after the title "Vice
President"), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which, at any particular time, its corporate trust business
shall be administered, which office as of the date of this Indenture
is located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust and Agency Group - Corporate Market Services.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Warrants" means warrants to purchase Securities.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" has the meaning specified with respect to such
term under the definition of "U.S. Depository."
"Designated Subsidiary" means any present or future
consolidated Subsidiary, the consolidated assets of which constitute
at least 15 percent of the consolidated assets of the Company.
"Dollars" or "$" or any similar reference shall mean the coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts, except as
may otherwise be provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Community.
"European Community" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"Event of Default" has the meaning specified in Section 501.
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"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by
the government of one or more countries other than the United States
of America or by any recognized confederation or association of such
governments.
"Government Obligations", with respect to any Security, means
(i) direct obligations of the government or governments which issued
the currency in which the principal of or any premium or interest on
such Security or any Additional Amounts in respect thereof shall be
payable, in each case where the timely payment or payments thereunder
are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of such government or
governments, in each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government or governments, and which, in the case
of (i) or (ii), are not callable or redeemable at the option of the
issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any
such Government Obligation or a specific payment of interest on or
principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount
with respect to the Government Obligation evidenced by such depository
receipt.
"Holder" 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, in the case of any coupon, the bearer thereof.
"Indebtedness" means all obligations which in accordance with
generally accepted accounting principles would be classified upon a
balance sheet as liabilities, including without limitation by the
enumeration thereof, obligations arising through direct or indirect
guarantees (including agreements, contingent or otherwise, to purchase
Indebtedness or to purchase property or services for the primary
purpose of enabling the payment of Indebtedness or assuring the owner
of Indebtedness against loss) or through agreements, contingent or
otherwise, to supply or advance funds for the payment or purchase of
Indebtedness of others; provided, however, that in determining
Indebtedness of any Person, there shall not be included rental
obligations under any lease of such Person, whether or not such rental
obligations would, under generally accepted accounting principles, be
required to be shown on the balance sheet of such Person as a
liability item.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
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"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original
issuance.
"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, and, when used with
respect to a Security which provides for the payment of Additional
Amounts pursuant to Section 1004, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"Judgment Currency" has the meaning specified in Section 115.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
"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,
notice of redemption, notice of option to elect repayment or
otherwise, and includes the Redemption Date.
"New York Banking Day" has the meaning specified in Section
115.
"New York Facility" means the Corporate Trust Office of the
Trustee as long as such Corporate Trust Office is located in The City
of New York and otherwise means the facility of the Trustee located in
The City of New York at which Securities may be presented or
surrendered for payment or registration of transfer or exchange or for
conversion or exchange and where notices and demands to or upon the
Company in respect of Securities and this Indenture may be served,
either pursuant to Section 1002 or as so specified pursuant to Section
301.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company which certificate complies with the requirements, if
applicable, of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee
of or counsel for the Company, or other counsel acceptable to the
Trustee, which opinion is acceptable to the Trustee and complies with
the requirements, if applicable, of Section 314(e) of the Trust
Indenture Act.
"optional sinking fund payment" has the meaning specified in
Section 1201.
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"Original Issue Discount Security" means any Security issued
pursuant to this Indenture which provides for an amount less than the
principal amount thereof to be due and payable upon acceleration
thereof pursuant to Section 502.
"Outstanding," when used with respect to any Securities means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) any such Security, or portion thereof, for whose
payment or redemption money and/or Government Obligations in the
necessary amount has been theretofore deposited pursuant hereto 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;
(c) any such Security that has been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
other than any such Security in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Security
is held by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company; and
(d) any such Security, or portion thereof, converted
into, or exchanged for, Common Stock, Preferred Stock, other
Securities or securities, Debt Warrants, Common Stock Warrants or
Preferred Stock Warrants if the terms of such Security provide for
such conversion or exchange;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of
Securities, (i) the principal amount of an Original Issue Discount
Security that shall be counted in making such determination and that
shall be deemed to be Outstanding for such purposes shall be equal to
the amount of the principal thereof that would be due and payable
pursuant to the terms of such Original Issue Discount Security as of
the date of such determination upon acceleration thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined on the
date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, (iii)
the principal amount of an Indexed Security that shall be counted in
making such determination and that shall be deemed to be Outstanding
for such purposes shall be equal to the principal
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face amount of such Indexed Security at original issuance, and (iv)
Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or 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 a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned that
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
coupons appertaining thereto or any Affiliate of the Company or such
other obligor.
"Paying Agent" means the Company or any Person authorized by
the Company to pay the principal of and any premium or interest on, or
any Additional Amounts with respect to, any Security or any coupon
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities
of any series, means the place or places where, subject to the
provisions of Section 1002, the principal of, or any premium or
interest on, or any Additional Amounts with respect to, 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 or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which
the mutilated, destroyed, lost or stolen coupon appertains, as the
case may be.
"Preferred Stock" means, with respect to the Company, its
Preferred Stock, $1.50 par value per share, of any series.
"Preferred Stock Warrants" means warrants to purchase
Preferred Stock.
"Redemption Date," when used with respect to any Security or
portion thereof 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 or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or 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, if any, specified for that purpose as contemplated by Section
301, whether or not a Business Day.
"Required Currency" has the meaning specified in Section 115.
"Responsible Officer," when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office, including
any managing director, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of the
Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility
for the administration of this Indenture, and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities,
as the case may be, 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 any premium or interest
thereon or any Additional Amounts with respect thereto, means the
fixed date on which the principal of such Security or such installment
of principal or premium or interest is or such Additional Amounts are
due and payable, determined as contemplated by Section 301.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the total voting
power of shares of stock or other equity interests having general
voting power under ordinary circumstances (without regard to the
occurrence of any contingency) and entitled to vote in the election of
directors, managers or trustees of such corporation.
"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 Trust Indenture Act or
provision, as the case may be, as amended or replaced from time to
time or as supplemented from time to
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time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Trust Indenture 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 the Securities of that series.
"United States," except as otherwise provided in or pursuant
to this Indenture, means the United States of America (including the
States thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or
pursuant to this Indenture, 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.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global
Securities, the Person designated as U.S. Depository or Depository by
the Company in or pursuant to this Indenture, which Person must be, to
the extent required by applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and,
if so provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, "U.S.
Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with
respect to such Securities.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, 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, provided that in the
case of any such application or request as to which the furnishing of such
documents or either of them 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
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(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(b) 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;
(c) 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 condition or covenant has been complied with; and
(d) 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 of counsel or
Opinion of Counsel or representations by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to matters upon which his certificate or
opinion is based are erroneous. Any such certificate of counsel or Opinion of
Counsel or representations by counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by or pursuant to
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are issuable as
Bearer Securities in whole or in part, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by or pursuant to
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this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held
in accordance with the provisions of Article Fourteen, or a
combination of such 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
or 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 and any agent of the Trustee or
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 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a Depository 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 Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
The Trustee may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
global Security held by a Depository entitled under the procedures of
such Depository 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 by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument
or writing, or the authority of the
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Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Registered Securities and 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 ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of 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 reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company
and the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (i) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or
(ii) such Bearer Security is produced to the Trustee by some other
Person, or (iii) such Bearer Security is surrendered in exchange for a
Registered Security, or (iv) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding the
same, may also be proved in any other manner that the Company and the
Trustee deem sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its
option, by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may
be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities on such
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months
after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other action 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
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Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent 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, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Group - Corporate Market
Services, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, by United States
first-class mail, postage prepaid, to the Company addressed to the
attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to the
provisions of this Indenture, where this Indenture provides for notice to
Holders of Securities of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed by United States
first-class mail, postage prepaid, to each Holder of a Registered
Security 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
(b) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities, if any, as may be
specified in such Securities and, if the Securities of such series are
then listed on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date and the second such publication to be not later than the
latest date prescribed for the giving of such notice.
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 to Holders of Bearer Securities
given as
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provided herein. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given or provided. 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 to Holders of Registered Securities
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 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 as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
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, if the Company so elects, 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 a
provision of the Trust Indenture Act that is required to be a part of and
govern this Indenture, 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, and all rights of
the Company hereunder shall inure to the benefit of such successors and
assigns.
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SECTION 111. SEPARABILITY AND SAVING CLAUSES.
(a) In case any provision in this Indenture or in any
Security or coupon shall be invalid, illegal or unenforceable, either
wholly or partially, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
(b) No provision of this Indenture or of any Security or
coupon shall require the payment or permit the collection of interest
or any Additional Amounts in excess of the maximum which is not
prohibited by law. If any such excess interest is provided for herein
or in any Security or coupon, which shall be adjudicated to be so
provided for, then the Company shall not be obligated to pay such
interest or Additional Amounts in excess of the maximum not prohibited
by law until such time, if any, as it shall become legal to do so.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in any Security or coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their respective
successors and assigns hereunder, and the Holders of Securities or coupons, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons, including the validity
thereof, shall be governed by and construed in accordance with the laws of the
State of New York without regard to conflict of laws principles.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Maturity or Stated Maturity of any Security, or
any installment of principal thereof or any premium or interest thereon or any
Additional Amounts with respect thereto shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or the Securities or coupons other than a provision in the Securities or
coupons of any series which specifically states that such provision shall apply
in lieu of this Section) payment of principal or any premium or interest or
Additional Amounts with respect to such Security 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 at the Maturity
or Stated Maturity, and no interest shall accrue on the amount so payable for
the period from and after such Maturity or Stated Maturity, as the case may be,
to such next succeeding Business Day.
SECTION 115. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due on the Securities of any
series from the currency in which such sum is payable in accordance with the
terms of such Securities (the "Required Currency") into a currency in which a
judgment will be
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rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, and related coupons shall be in such form
or forms (including permanent or temporary global form) as shall be established
in one or more indentures supplemental hereto or by or pursuant to a Board
Resolution in accordance with Section 301, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange 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, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities or coupons.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons.
The definitive Securities and coupons, if any, shall be typewritten,
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner,
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all as determined by the officers of the Company executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
----------------------------
as Trustee
By
--------------------------
Authorized Signatory
SECTION 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be 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 Company Order to be delivered pursuant
to Section 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 global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to 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.
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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. The terms of the
Securities in addition to or in lieu of those set forth in this Indenture shall
be determined or established in any one or more of the following ways: (1) in
one or more indentures supplemental hereto; (2) in one or more Board
Resolutions; or (3) in a manner specified in or authorized by one or more Board
Resolutions (in which case such Board Resolutions shall be included in or
attached to an Officers' Certificate setting forth such terms or the manner in
which such terms are to be determined or established). The terms to be so
determined or established shall include:
(a) the title of the Securities and the series in which
such Securities shall be included;
(b) any limit upon the aggregate principal amount of the
Securities of such 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 such series pursuant to Section 304, 305,
306, 906 or 1107);
(c) whether such Securities are to be issuable as
Registered Securities, Bearer Securities (with or without coupons or
both) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Securities of the series, the terms, if any, upon
which Bearer Securities of the series may be exchanged for Registered
Securities of the series and vice versa, whether any Securities of the
series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, (1) when any of such
Securities are to be issued in global form, (2) whether beneficial
owners of interests in any such permanent global Security may exchange
such interests for certificated Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, (3) the name of the U.S. Depository or the
Depository, as the case may be, with respect to any global Security,
and (4) the form of any legend or legends to be borne by any such
global Security in addition to or in lieu of the legend referred to in
Section 303;
(d) the date as of which any Bearer Securities of the
series and any global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
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(e) if Securities of the series are to be issuable as
Bearer Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all or any
portion of the Outstanding Bearer Securities of the series) payable in
respect of an Interest Payment Date therefor prior to the exchange, if
any, 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;
(f) the date or dates on which the principal of such
Securities is payable, or the manner in which such date or dates shall
be determined;
(g) the rate or rates at which such Securities shall bear
interest, if any, or the manner in which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or
the manner in which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable or
the manner in which such Interest Payment Dates shall be determined,
and the Regular Record Date, if any, for any interest payable on any
such Registered Securities on any such Interest Payment Date, whether
and under what circumstances Additional Amounts on such Securities or
any of them shall be payable and, if so, whether the Company has the
option to redeem the affected Securities rather than pay such
Additional Amounts, and the basis upon which interest shall be
calculated if other than that of a 360-day year consisting of twelve
30-day months;
(h) the right, if any, of the Company to extend the
interest payment periods of such Securities, the maximum duration, if
any, of any such extension or extensions, the additional interest, if
any, payable on such Securities if any interest payment period is
extended and any notice (which shall include notice to the Trustee)
which must be given upon the exercise of such rights;
(i) each Place of Payment of such Securities, if any,
other than or in addition to The City of New York, where, subject to
Section 1002, the principal of and any premium and interest on or
Additional Amounts, if any, payable in respect of, such Securities
shall be payable, the place or places where any Registered Securities
of the series may be surrendered for registration of transfer or
exchange and where such Securities may be surrendered for conversion
or exchange and any notices and demands to or upon the Company in
respect of such Securities and this Indenture may be served;
(j) whether such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
terms and conditions upon which such Securities may be redeemed, in
whole or in part, at the option of the Company;
(k) the obligation, if any, of the Company to redeem such
Securities pursuant to any sinking fund or analogous provisions or to
repay such Securities at the option of a Holder
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thereof or upon the occurrence of one or more specified events and, if
so, the date or dates on which, the period or periods within which (or
the event or events upon which), the price or prices at which and the
other terms and conditions upon which such Securities shall be
redeemed or repaid, in whole or in part, pursuant to such obligation,
and any provisions for the remarketing of such Securities so redeemed
or repaid;
(l) the obligation, if any, of the Company to permit the
conversion or exchange of such Securities into or for Common Stock,
Preferred Stock, Debt Warrants, Common Stock Warrants, Preferred Stock
Warrants or other Securities or securities, and the terms and
conditions upon which such conversion or exchange shall be effected
(including, without limitation, the initial conversion or exchange
price or rate, the conversion or exchange period, any adjustment of
the applicable conversion or exchange price, any requirements relative
to reservation of shares for purposes of conversion or exchange and
any other provision in addition to or in lieu of those set forth in
this Indenture or any indenture supplemental hereto relative to such
obligation);
(m) the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of $1,000
and any integral multiple thereof, and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable, if other than the denomination of $5,000;
(n) if other than the full principal amount thereof, the
portion of the principal amount of any such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or, if applicable, the portion of the
principal amount of any such Securities that may be converted or
exchanged in accordance with the provisions of this Indenture or the
manner in which such portion is to be determined;
(o) if other than Dollars, the Foreign Currency in which
payment of the principal of and any premium and interest on, and any
Additional Amounts in respect of, such Securities shall be payable;
(p) if the principal of and any premium or interest on,
and any Additional Amounts in respect of, such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in a coin or currency, including a Foreign Currency, other
than that in which such Securities are stated to be payable, the
period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the coin or currency in which
such Securities are denominated or stated to be payable and the coin
or currency in which such Securities or any of them are to be so
payable;
(q) whether the amount of payments of principal of and
any premium or interest on, and any Additional Amounts in respect of,
such Securities may be determined with reference to an index, formula
or other method or methods (which index, formula or method or methods
may be based, without limitation, on one or more currencies,
commodities, equity
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indices or other indices) and, if so, the terms and conditions upon
which and the manner in which such amounts shall be determined and
paid or payable;
(r) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein,
any change in the right of the Trustee or Holders to declare the
principal of such Securities due and payable, and any additions to the
definitions currently set forth in this Indenture;
(s) whether any of such Securities are to be issuable
upon the exercise of warrants and, if so, the details with respect
thereto, including the time, manner and place for such Securities to
be authenticated and delivered;
(t) the form or forms of such Securities, if any, and, if
any Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms
of such certificates, documents or conditions;
(u) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and Authenticating Agent with respect to such
Securities; and
(v) any other terms of such Securities (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and any coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
coin or currency of payments due thereunder, denomination, the rate or rates of
interest, if any, or the method of determining the rate of interest, if any,
the date or dates from which interest, if any, shall accrue, and Stated
Maturity and except as may otherwise be provided in the terms of such
Securities determined or established as provided above. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the Securities or coupons of any series are
established by action that is specified in or authorized by a Board Resolution
and such action is to be taken at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series of Securities or the manner
in which such terms are to be determined or established, then a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series or the manner in which such terms are to be determined or established.
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SECTION 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof, and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in such denominations
as are established with respect to such Securities in or pursuant to this
Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman, its Vice Chairman, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant 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 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 on the date(s) such Securities were
issued.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with the Board Resolution and Officers' Certificate,
supplemental indenture or other instrument with respect to such Securities
referred to in Sections 201 and 301 and a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order and subject to the provisions hereof shall authenticate and deliver such
Securities. If all the Securities of any series are not to be issued at one
time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date,
date of issuance and date from which interest shall accrue. In authenticating
Securities hereunder, and accepting the additional responsibilities under this
Indenture in relation to such Securities and any coupons appertaining thereto,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon,
(a) an Opinion of Counsel stating substantially to the
effect that,
(1) the form and terms of such Securities and
coupons, if any, or the manner of determining such terms, have
been established in conformity with the provisions of this
Indenture; and
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(2) such Securities and coupons, 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, enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance, or other laws relating to or affecting
the enforcement of creditors' rights and by general equity
principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim (or a Foreign
Currency judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments in a Foreign
Currency or payments outside the United States (and with such
other exceptions as to enforceability as such counsel shall
state are not materially adverse to the Holders); and
(b) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event which is,
or after notice or lapse of time would become, an Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
The Trustee shall not be required to authenticate or to cause an Authenticating
Agent to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of issuance of each such Security, but such opinion and
certificate shall be delivered at or before the time of issuance of the first
Security of such series to be issued.
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, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more global Securities in temporary or
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 Depository for such
global Security or Securities or the nominee of such Depository, (iii) shall be
delivered by the Trustee to such Depository or pursuant to such Depository's
instruction and (iv) shall bear a legend substantially to the following effect
(or to such other effect as may be specified in the document authorizing such
series of Securities or as the Depository, the Trustee and the Company may
agree):
"Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another nominee of
the
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Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository".
Each Registered Security shall be dated the date of its
authentication. 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 coupon appertaining thereto 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 in Section 202 or 613 executed by or on behalf of the
Trustee or an Authenticating Agent by the manual signature of one of its
authorized officers. Such an executed certificate of authentication upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. 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
have been detached and canceled.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series 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 or pursuant
to this Indenture, in bearer form with one or more coupons or without coupons,
and with such appropriate insertions, omissions, substitutions and other
variations as the officers of the Company executing such Securities may
determine, as evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
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 shall cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of such
definitive Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of such series
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002, 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 a like aggregate
principal amount of definitive Securities of authorized denominations of the
same series containing identical terms and provisions; provided, however, that
no definitive Bearer Security, except as provided pursuant to Section 301,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to a temporary global Security, until
so exchanged the temporary Securities of any series
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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.
With respect to the Registered Securities, if any, of each series of
Securities, the Company shall cause to be kept at an office or agency of the
Company maintained pursuant to Section 1002 a register (each such register
being herein sometimes 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 the Registered Securities of each series and of
transfers of the Registered Securities of each series. Such office or agency
shall be the "Security Registrar" for the Registered Securities, if any, of
each series of Securities. In the event that the Trustee shall not be the
Security Registrar with respect to a particular series of Securities, it shall
have the right to examine the Security Register for such series at all
reasonable times. Unless otherwise provided with respect to a series of
Securities in a supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities, Bankers Trust Company is hereby
appointed Security Registrar for each series of Securities until a successor
has been appointed by a Board Resolution or an instrument executed on behalf of
the Company by its Chairman, Vice Chairman, President or one of its Vice
Presidents and delivered to the Trustee.
Upon surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, 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, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding, and containing identical terms and
provisions.
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 other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities that the Holder making the exchange is
entitled to receive.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities or Bearer Securities (if
Bearer Securities of such series are issuable in more than one denomination) of
the same series containing identical terms and provisions, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency of the Company
maintained for such series, 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
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surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is 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 Bearer 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 for such series 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 and like tenor 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 proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
If expressly provided in or pursuant to this Indenture with respect to
the Securities of any series, at the option of the Holder, Registered
Securities of such series may be exchanged for Bearer Securities upon such
terms and conditions as may be provided in or pursuant to this Indenture with
respect to such series.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
(iii) an Event of Default has occurred and is continuing with respect to the
Securities of the same series, or (iv) in the case of a global Security
representing Bearer Securities, upon the written request of a beneficial owner
of an interest in such global Security given to the Depository. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for certificated Securities of 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
certificated Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series as, containing identical
terms as and in aggregate principal amount equal to the principal amount of,
such global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository (or such other Depository
as shall be
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specified in the Company Order with respect thereto) to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
certificated Securities as described above, without charge, in accordance with
instructions (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) given by the Company to the Trustee and such U.S. Depository or
other Depository, as the case may be. 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 certificated Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities 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 provided in or
pursuant to this Indenture) 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 days before any
selection of Securities for redemption of the same series and containing
identical terms and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) 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 U.S. Depository or such other Depository
referred to above, as the case may be, in accordance with the instructions of
the Company referred to above, with an endorsement thereon to reflect the
decrease in the aggregate amount of Outstanding Securities represented thereby.
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 for such Security
where such exchange occurs on or after (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 shall be payable in accordance with the
provisions of this Indenture.
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 entitling the Holders thereof 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 or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar therefor 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 or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other
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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.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities
of like tenor and the same series under Section 1103 and ending at the close of
business (A) if Securities of the series are issuable only as Registered
Securities, on the day of the mailing of the relevant notice of redemption, and
(B) if Securities of the series are issuable as Bearer Securities, on the day
of the first publication of the relevant notice of redemption or, if Securities
of the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except, in the case of any Security to be redeemed in
part, the portion thereof not to be redeemed, (iii) to exchange any Bearer
Security so selected for redemption, except, to the extent provided with
respect to such Bearer Security, that such Bearer Security may be exchanged for
a Registered Security of like tenor and the same series, provided that such
Registered Security shall be immediately surrendered for redemption with
written instruction for payment consistent with the provisions of this
Indenture or (iv) to issue, register the transfer of or exchange any Security
that, in accordance with its terms, has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be so
repaid.
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 therefor a new Security
of the same series and principal amount, containing identical terms and
provisions 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 to 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 and
principal amount, containing identical terms and provisions 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 any premium or interest on
or any Additional Amounts with respect to any Bearer Securities shall, except
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as otherwise provided in Section 1002, be payable only at an office or agency
for such Securities located outside the United States.
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 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 destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS PRESERVED.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on and any
Additional Amounts with respect to any Registered Security that 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 and any interest on any Bearer Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid upon surrender of the coupon appertaining thereto in respect of the
interest due on such Interest Payment Date. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an office or
agency for such Security on any Regular Record Date therefor and before the
opening of business at such office or agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on and any
Additional Amounts with respect to any Registered Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date for such Registered Security (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been
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such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in subsection (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities affected (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 such
Registered Security 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 so deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this subsection
provided. Thereupon, the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, United States first-class postage prepaid, to each Holder of
such Registered Securities (or their respective Predecessor
Securities) 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 of general circulation in The
City of New York, 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 mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Registered Securities
(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 subsection (b). In case a Bearer
Security of any series is surrendered at the office or agency for such
Security 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 shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(b) The Company may make payment of any Defaulted
Interest on such Registered Securities 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
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proposed payment pursuant to this subsection (b), such manner of
payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register
or by transfer to an account maintained by the payee with a bank located in the
United States or by any other means permitted in the form of Securities of any
particular series pursuant to the provisions of this Indenture.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in
the Security Register as the owner and Holder of such Registered Security for
the purpose of receiving payment of the principal of and any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Registered Security and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security shall 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.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. 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 any payment with respect to 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 owner of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner and Holder of
such global Security 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, for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests or for any other matter relating to the
actions and practices of the Depository, its nominee or its participants.
Neither the Company, the Trustee, any Paying Agent nor the Security Registrar
for Securities represented by a global Security will be liable for any delay by
the Depository thereof, its nominee or any of its participants in identifying
the owners of beneficial interests in such
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global Security, and the Company and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from such Depository or its
nominee for all purposes.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
conversion, exchange or 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 any such Securities and coupons,
as well as Securities and coupons surrendered directly to the Trustee for any
such purpose, 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 may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, 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 or pursuant to this Indenture. All canceled Securities and coupons held by
the Trustee shall be disposed of in accordance with its customary practices,
subject to applicable law.
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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as provided in the last paragraph of this Section 401), and the
Trustee, on demand of and at the expense of the Company, shall execute such
instruments as may be requested by the Company acknowledging satisfaction and
discharge of this Indenture with respect to such series, when
(a) either
(1) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities of such series surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 305, (ii) Securities of such series and coupons which
have been destroyed, lost or stolen and that have been
replaced or paid as provided in
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Section 306, (iii) coupons appertaining to Securities of such
series called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
by Section 1106 and (iv) Securities of such series and coupons
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(2) all such Securities of such series and, in
the case of (i) and (ii) below, any coupons appertaining
thereto 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) if redeemable at the option of the
Company, 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 (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited
(except as provided in Section 402(c)) with the Trustee, as
trust funds and/or obligations in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an
amount, or (B) Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than the opening
of business on the due dates of any payment of principal and
any premium, interest and Additional Amounts with respect
thereto money in an amount or (C) a combination thereof,
sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the
Trustee for cancellation, including the principal of, any
premium and interest on, and any Additional Amounts with
respect to such Securities and coupons, to the date of such
deposit (in the case of Securities of such series which have
become due and payable) or to the Stated Maturity or Maturity
thereof, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a
Certificate of a Firm of Independent Public Accountants certifying as
to the sufficiency of the amounts deposited pursuant to paragraph (2)
of subsection (a) of this Section for payment of the principal and
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any premium, interest and Additional Amounts with respect to the
Securities of such series on the dates such payments are due, and an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series of Securities have
been complied with.
If there are Securities of two or more series hereunder, and if a
different Trustee has been appointed with respect to one or more of such
series, then each Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture if requested to do
so only with respect to Securities of the series as to which it is Trustee and
if the other conditions thereto are met.
If subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Amounts in excess of those established as of the date
such discharge is effected become payable in respect of the series of
Securities discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 401,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Amounts becomes due, such additional funds as
are necessary to satisfy the provisions of this Section 401 as if a discharge
were being effected as of the date of such subsequent deposit. Failure to
comply with the requirements of this paragraph shall result in the termination
of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations with respect to the right of
registration of transfer or exchange of Securities of such series provided for
herein, the obligations of the Company under the preceding paragraph, the
obligations with respect to any conversion or exchange of Securities of such
series provided in the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities, the obligations of the
Company to the Trustee under Section 607 and, if money and/or Government
Obligations shall have been irrevocably deposited with the Trustee pursuant to
paragraph (2) of subsection (a) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of
Section 1003, all money and/or Government Obligations deposited with
the Trustee pursuant to Section 401 or Section 1009 or pursuant to a
supplemental indenture entered into pursuant to Section 901(i), and
all money received by the Trustee in respect of any such Government
Obligations, 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 any
premium, interest and Additional Amounts for whose payment such money
has or Government Obligations have been deposited with or received by
the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Section 401 or Section 1009 or any such
supplemental indenture; but such
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money and Government Obligations need not be segregated from other
funds of the Trustee except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 401 or Section
1009 or pursuant to a supplemental indenture entered into pursuant to
Section 901(i) or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any Government Obligations or money
held by it as provided in Section 401 or Section 1009 or in any
supplemental indenture entered into pursuant to Section 901(i) which,
as expressed in a Certificate of a Firm of Independent Public
Accountants delivered to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for the
purpose for which such obligations or money were deposited or
received.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series (unless otherwise specified with respect to such series of Securities
in the supplemental indenture, Board Resolution or other instrument authorizing
such series of Securities), means any one of the following events which has
occurred and is continuing (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):
(a) default in the payment of any interest or Additional
Amounts payable in respect of any Security of that series or any
coupon appertaining thereto, when such interest or Additional Amounts
become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of the principal of and any
premium on any Security of that series when it becomes due and payable
at its Maturity; or
(c) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture or the
Securities of that series (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt
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with or which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified United States mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate 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
(e) an event of default, as defined in 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
of the Company (including a default under this Indenture with respect
to Securities of any series other than that series), whether such
Indebtedness now exists or shall hereafter be created, shall happen and
shall result in a principal amount in excess of $25,000,000 of
Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, and such
acceleration shall not have been rescinded or annulled, or such
Indebtedness shall not have been discharged, within a period of 15 days
after there has been given, by registered or certified United States
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
event of default and requiring the Company to cause such acceleration
to be rescinded or annulled or to cause such Indebtedness to be
discharged and stating that such notice is a "Notice of Default"
hereunder; or
(f) a court having jurisdiction in the premises shall
have entered a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable United States
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Company or of all or any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(g) the Company shall have commenced a voluntary
proceeding under any applicable United States bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or of all or any substantial part of its property, or
shall have made an assignment for the benefit of creditors; or
(h) the Company shall have failed generally to pay its
debts as they become due or shall have taken any corporate action in
furtherance of any of the matters referred to in subsection (g) above;
or
(i) any other Event of Default provided with respect to
Securities of such series in the supplemental indenture, Board
Resolution or other instrument authorizing such series.
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] SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, if an Event of Default with respect to Securities
of any series at the time Outstanding occurs and is continuing (other than an
Event of Default specified in Section 501 (f) or (g)), then, and in every such
case, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
amount (or such specified amount) shall become immediately due and payable. If
an Event of Default specified in Section 501 (f) or (g) with respect to
Securities at the time Outstanding occurs and is continuing, then, and in every
such case, the principal amount (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the Securities of
that series shall become and be immediately due and payable without any
declaration or other action on the part of the Trustee or any Holder.
At any time after such acceleration with respect to Securities of any
series and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such acceleration and its consequences if:
(a) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(1) all overdue installments of any interest on
and Additional Amounts payable in respect of all Securities of
that series and any coupons appertaining thereto,
(2) the principal of and any premium on any
Securities of that series which have become due otherwise than
by reason of such acceleration and interest thereon and
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(3) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest and
Additional Amounts at the rate or rates borne by or provided
for in such Securities, and
(4) 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
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(b) 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 has become due solely by reason of such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of
interest or any Additional Amounts payable in respect of any Security
or any coupon appertaining thereto when such interest or Additional
Amounts shall have become due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of all Securities which are of the same series as such Security and
any coupons appertaining thereto, the whole amount of money then due and
payable with respect to such Securities and coupons for principal, premium,
interest and Additional Amounts and, to the extent that payment of such
interest shall be legally enforceable, interest upon any overdue principal (and
premium, if any) and upon any overdue installments of interest and Additional
Amounts, at the rate or rates borne by or provided for in such series of
Securities, and, in addition thereto, such further amount of money 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.
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 coupons 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 and coupons, 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 such
Securities or in aid of the exercise of any power granted herein or therein, or
to enforce any other proper remedy.
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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 and any coupons appertaining thereto 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 acceleration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of any
series, of principal, premium, interest and Additional Amounts owing
and unpaid in respect of the Securities and any coupons appertaining
thereto 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 of the Holders of
Securities and coupons allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due to 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 any of 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.
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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, any premium,
interest or Additional Amounts, 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;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any coupons for principal and any premium, interest
and Additional Amounts 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 aggregate amounts due and payable on
such Securities and coupons for principal and any premium, interest
and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, 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
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in aggregate
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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) 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 aggregate 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 or any Security to
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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
AND ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
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 Sections 305 and 307) any interest on, and any Additional Amounts
in respect of, such Security, or payment of such coupon, as the case may be, on
the respective Stated Maturity or Maturities thereof expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder, on the date such repayment is
due) and to institute suit for the enforcement of any such payment and, in the
case of Securities which are convertible into or exchangeable for other
securities or property, the right to receive such securities or property when
such Securities are converted or exchanged in accordance with the terms of such
Securities, and such rights shall not be impaired without the consent of such
Holder.
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 the Company, the Trustee and the Holders of Securities or coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and such 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
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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 aggregate 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
(a) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction;
(c) such direction is not unduly prejudicial to the
rights of other Holders of Securities of such series not joining in
such action; and
(d) subject to the provisions of Sections 601 and 603,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer
or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate 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 the Securities of such series and its consequences,
except a default
(a) in the payment of the principal of or any premium or
interest on, or Additional Amounts in respect of, any Security of such
series; or
(b) 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.
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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
(other than the Company and the Trustee) 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 Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of a Security
or coupon for the enforcement of the payment of the principal of or any premium
or interest on, or Additional Amounts in respect of, any Security, or the
payment of any coupon, on or after the Stated Maturity or Maturities expressed
in such Security or coupon (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of a Holder, on or
after the date such repayment is due) or interest on any overdue principal of
any Security, or to any suit instituted by any Holder of a Security for the
enforcement of any right to convert or exchange such Security into or for
another security.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in
this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
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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 provisions 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 has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(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;
(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 aggregate 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 such default 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
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the payment of the principal of or any premium or interest on, or Additional
Amounts in respect of, 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 and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities and
coupons of such series; and provided, further, that in the case of any default
of the character specified in Section 501(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(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 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 Company Request or Company
Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may 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 or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any related coupons 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 or other paper or
document, but the
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Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default (other than a default in any payment with respect
to a Security due on a fixed date and with respect to which the
Trustee is a Paying Agent) unless either (i) a Responsible Officer of
the Trustee assigned to its corporate trust and agency group shall
have actual knowledge thereof or (ii) the Trustee shall have received
written notice thereof in accordance with Section 105 from the Company
or any Holder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificate of authentication) and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any 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 on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent 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 the provisions of the Trust Indenture Act, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent 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.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee such compensation as shall be
agreed upon in writing from time to time for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel and other persons not regularly in its employ),
except to the extent any such expense, disbursement or advance may be
attributable to the Trustee's gross negligence or willful misconduct;
and
(c) to indemnify each of the Trustee and its officers,
directors, employees and agents for, and to hold each of them harmless
against, any and all loss, liability, damage or expense including
taxes (other than taxes based upon the income of the Trustee) arising
out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or a
series thereof or the trust or trusts hereunder or the performance of
its duties 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, except to the
extent any such loss, liability or expense may be attributable to its
gross negligence or willful misconduct.
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 or any premium or interest on, or
Additional Amounts in respect of, particular Securities or any coupons
appertaining thereto. "Trustee" for purposes of this Section 607 includes any
predecessor Trustee, but negligence or bad faith of any Trustee shall not be
attributed to any other Trustee. If the Trustee renders services and incurs
expenses following an Event of Default under Section 501(f) or Section 501(g)
hereof, the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law. The provisions of this Section 607
shall survive the termination of this Indenture or the earlier resignation or
removal of the Trustee.
SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or 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 of at least $50,000,000. 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 under 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
aggregate principal amount of the Outstanding Securities of such series
delivered to the Trustee and to 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 of a Security,
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 or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove such Trustee with respect to all Securities as
to which it is Trustee or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security of any series
for at least six months may, on behalf of himself and all others
similarly situated,
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petition any court of competent jurisdiction for the removal of such
Trustee with respect to all Securities of such series 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 or pursuant to 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 aggregate 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 to the Holders of
Securities of a particular series of each resignation and each removal
of the Trustee with respect to the Securities of such series and each
appointment of a successor Trustee with respect to the Securities of
such series in the manner provided in Section 106. Each such 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 and New York Facility.
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, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on request
of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts hereunder 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, subject nevertheless to its
lien, if any, provided for in Section 607.
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(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 as co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder; 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, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have
no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture other than as hereinafter expressly set forth,
and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(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 subsection (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
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the Trustee shall be a party, or any corporation succeeding to all or
substantially all of 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. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents acceptable
to the Company 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 original issue or 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
subject to the approval of the Company and shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid 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.
In case 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 of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating
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Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon such a
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 United States
first-class mail, postage prepaid, to all Holders of Registered Securities, if
any, of the series with respect to which such Authenticating Agent shall serve,
as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place where
such successor Authenticating Agent has its principal office if such office is
located outside the United States. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation, including reimbursement of its reasonable
expenses for its services under this Section.
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 or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication substantially in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
----------------------------
as Trustee
By
--------------------------
as Authenticating Agent
By
--------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) by the
Company, shall appoint in accordance
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with this Section 613, and on terms acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS OF REGISTERED SECURITIES.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than fifteen days after the
Regular Record Date for a semi-annual Interest Payment Date for each
series of Securities, or, if there is no semi-annual Interest Payment
Date for a series of Securities, then not later than May 15 and
November 15 in each year, commencing on the first May 15 or November
15, as the case may be, after the first issuance of such Securities
hereunder, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Registered Securities of
such series as of a date not more than 15 days prior to the date of
delivery thereof, 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,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the
Trustee acts as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
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 Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with Section 312(c) 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(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after December 31 of each year
commencing with the first December 31 after the first issuance of
Securities pursuant to this Indenture, if required by
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Section 313(a) of the Trust Indenture Act, the Trustee shall transmit
a brief report dated as of such December 31 with respect to any of the
events specified in said Section 313(a) which may have occurred since
the later of the immediately preceding December 31 and the date of
this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d)
of the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
(a) The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(i) 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;
(ii) 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
(iii) transmit to the Holders of Securities within
30 days after the filing thereof with the Trustee, 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 subsections (i) and (ii) of this Section 704(a) as
may be required by rules and regulations prescribed from time
to time by the Commission.
(b) The Company shall notify the Trustee when and as the
Securities become admitted to trading on any national securities
exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, merge with or into, or sell or
convey all or substantially all of its assets to, any other corporation,
association, company or business trust, provided that (a) (i) in the case of a
merger, the Company is the surviving entity in such merger, or (ii) in the case
of a merger in which the Company is not the surviving entity or in the case of
a consolidation or a sale or conveyance of assets, the entity into which the
Company is merged or the entity which is formed by such consolidation or which
acquires by sale or conveyance all or substantially all of the assets of the
Company shall be a corporation, association, company or business trust
organized and existing under the laws of the United States of America or a
State thereof and such successor entity shall expressly assume the due and
punctual payment of the principal of and any premium and interest on, and any
Additional Amounts payable pursuant to Section 1004 in respect of, all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants of this Indenture and the Securities to be
performed or observed by the Company by a supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
entity and (b) the Company or such successor entity, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance or observance of any such covenant
and shall not immediately thereafter have outstanding (or otherwise be liable
for) any indebtedness for money borrowed secured by a mortgage, pledge, lien,
security interest or other encumbrance prohibited by the provisions of Section
1007 or shall have secured the Securities Outstanding hereunder equally and
ratably with (or prior to) such other secured indebtedness for money borrowed
so long as it is outstanding and is so secured.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR ENTITY.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, and upon any such
assumption by a successor entity, such successor entity shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor corporation, except
in the event of a conveyance by way of lease, shall be relieved of any further
obligation under this Indenture and the Securities and any coupons appertaining
thereto. Such successor entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities and coupons issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee, and, upon the order of such
successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities and coupons which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities or coupons which such successor
entity thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Securities and coupons so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities and
coupons theretofore or
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thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and coupons had been issued at the date of the execution
hereof.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities and
coupons thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, sale or conveyance, and any such
assumption by the successor entity, complies with the provisions of this
Article.
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 or pursuant to 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:
(a) to evidence the succession of another entity to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(b) 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
(c) to add any additional Events of Default with respect
to all or any series of Securities; or
(d) 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) or any interest on or Additional
Amounts with respect to Registered Securities or Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to modify the provisions relating to global Securities or
to permit the issuance of Securities in uncertificated form, provided
that any such action
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shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(e) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination not otherwise
permitted under this Section 901 shall (i) 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 (ii) not apply to any Security then
Outstanding; or
(f) to secure the Securities pursuant to the requirements
of Sections 801 or 1007, or otherwise; or
(g) to establish the form or terms of Securities and any
related coupons as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee pursuant to the requirements of Section 611(b); or
(i) to provide that the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding
Securities of any series on the 91st day after the date of the deposit
referred to in paragraph (5) hereof, and that the provisions of this
Indenture, as they relate to such Outstanding Securities (except as to
any right to receive Additional Amounts, as provided in Section 1004),
shall no longer be in effect (and the Trustee, at the expense of the
Company, shall at Company Request, execute proper instruments
acknowledging the same), except as to:
(1) the rights of Holders of such Outstanding
Securities to receive, from the trust funds described in
paragraph (5) hereof, (i) payment of the principal of (and
premium, if any) and any installment of the principal of (and
premium, if any) and/or interest on the Outstanding Securities
of that series on the Stated Maturity or Maturity of such
principal or installment of principal and/or interest and (ii)
any mandatory sinking fund payments or analogous payments or
any Additional Amounts applicable to Securities of such series
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities,
(2) the Company's obligations with respect to
such Securities under Sections 305, 306, 402, 1002 and 1003,
(3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and
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(4) such other rights, if any, that are specified
in such supplemental indenture as surviving such payment and
discharge,
provided that the following conditions shall have been satisfied:
(5) with reference to such provision, the Company
has irrevocably deposited or caused to be irrevocably
deposited (except as provided in Section 402(c)) with the
Trustee, as trust funds and/or obligations in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(i) money in an amount, or (ii) Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than one
day before the due date of any payment referred to in clause
(A) or (B) of this paragraph (5) money in an amount or (iii) a
combination thereof, sufficient, as expressed in a Certificate
of a Firm of Independent Public Accountants delivered to the
Trustee, to pay and discharge (A) the principal of (and
premium, if any) and any installment of the principal of (and
premium, if any) and/or interest on the Outstanding Securities
of that series due on the Stated Maturity or Maturity of such
principal or installment of principal and/or interest and (B)
any mandatory sinking fund payments or analogous payments or
any Additional Amounts applicable to Securities of such series
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities;
(6) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act with respect
to the Securities of any series;
(7) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument relating to borrowed money,
pursuant to which in excess of $10,000,000 principal amount is
then outstanding, to which the Company is a party or by which
it is bound;
(8) such provision would not cause the
Outstanding Securities of such series then listed on the New
York Stock Exchange to be delisted as a result thereof;
(9) no Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to Securities of that series shall have
occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(10) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been
published by, the United States Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case, to the effect that Holders of the Securities of
such
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series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and
discharge had not occurred;
(11) if the Securities of such series are to be
redeemed, either notice of such redemption shall have been
given or the Company shall have given the Trustee irrevocable
directions to give notice of such redemption in the name, and
at the expense, of the Company, under arrangements
satisfactory to the Trustee;
(12) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance as specified
in this Section 901(i), have been complied with; and
(13) such supplemental indenture shall contain a
provision substantially to the same effect as the last
paragraph of Section 1009 but relating to the Securities to be
discharged under the terms of such supplemental indenture; or
(j) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issuance and authentication and delivery of Securities, as
herein set forth; or
(k) to make provision with respect to the conversion or
exchange rights of the Holders of any series of Securities pursuant to
the requirements of the supplemental indenture, Board Resolution, or
other instrument establishing the terms of such series of Securities;
or
(l) 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.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of such Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series 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
affected thereby:
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(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof or otherwise, or change
any obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801 and permitted by
Section 901(a)and (d)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or, subject to the provisions of Section 1002, change
any Place of Payment where, or the coin or currency in which, the
principal of any Security or any premium or the interest thereon or
any Additional Amounts with respect thereto 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, in the case of repayment at the
option of the Holder, on or after the date for repayment); or
(b) adversely affect any right to convert or exchange any
Security; or
(c) reduce the percentage in aggregate principal amount of
the Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture or reduce the requirements
of Section 1404 for quorum or voting; or
(d) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase the percentage in aggregate
principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for the actions specified herein
or therein, 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 subsection shall not be deemed to require the
consent of any Holder of Securities or coupons with respect to changes
in the references to "the Trustee" and concomitant changes in this
Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Section 901(h).
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 or
coupons 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.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
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 or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
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.
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 Board of Directors, 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 AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
and any premium and interest on, and any Additional Amounts payable in respect
of, the Securities of that series in accordance with the terms of such series
of Securities, any coupons appertaining thereto and this Indenture. Any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before the Maturity
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thereof, other than Additional Amounts, if any, payable as provided in Section
1004 in respect of principal of or any premium 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 shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and, if applicable to Securities of that series, for conversion 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, and the Company
hereby initially appoints the Trustee at its Corporate Trust Office as its
agent to receive all such presentations, surrenders, notices and demands. If
Securities of a series are issuable as Bearer Securities, the Company shall
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 any related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of such series pursuant to Section 1004), where
Securities of that series may be surrendered for 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; 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
shall maintain a Paying Agent for the Securities of such series in London,
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 each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office or the New York Facility of the Trustee, except that
Bearer Securities of that series and any 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.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, or any premium or interest on or Additional Amounts in respect of
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, that payment of principal of and any premium or interest
(including Additional Amounts payable in respect thereof) on any Bearer
Security may be made in Dollars at the Corporate Trust Office of the Trustee if
(but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for such
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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 of 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 accordance with the requirements set forth above for
Securities of any series for such purposes. The Company shall 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. Unless otherwise set
forth in, or pursuant to, a Board Resolution or any indenture supplemental
hereto with respect to a series of Securities issuable as Registered Securities,
the Company hereby designates as the Place of Payment for each series of
Securities issuable as Registered Securities the Borough of Manhattan, The City
of New York, and initially appoints the Trustee at its Corporate Trust Office as
Paying Agent and as its agent to receive all such presentations, surrenders,
notices and demands.
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 shall, on or before each due date of
the principal of and any premium or interest on or Additional Amounts with
respect to 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 any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall 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 shall, on or prior to each due date of the principal
of and any premium or interest on or any Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal and any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest or Additional Amounts, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of its
action or failure so to act.
The Company shall 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:
(a) hold all sums held by it for the payment of the
principal of and any premium or interest on or Additional Amounts with
respect to 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 provided in or pursuant to this Indenture;
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(b) 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 the principal of, any premium or interest on
or Additional Amounts with respect to Securities of that series; and
(c) 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, discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, any money deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of and any premium or interest on or Additional Amounts in respect of
any Security and remaining unclaimed for one year after such principal and any
premium or interest or Additional Amounts has become due and payable shall be
paid to the Company upon Company Request along with interest, if any, that has
been accumulated thereon 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 of such principal, premium or interest, without interest
thereon, 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 for such series or to be mailed to Holders of Registered Securities of
such series, 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 to the Holders of such Securities, then the Company shall pay to each
Holder of such Securities or any coupon appertaining thereto the Additional
Amounts as provided therein. Whenever there is mentioned in this Indenture, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Security of any series or payment of 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 by the terms of such series pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts
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(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.
Except as otherwise provided in or pursuant to this Indenture, 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 such series of
Securities (or if the Securities of such series shall not bear interest prior
to Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium 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 or the Company, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of such
series shall be made to Holders of Securities of such series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
such 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 shall pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. 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. STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement, which
need not comply with Section 102, signed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1005, such compliance shall be determined
without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event which
after notice or lapse of time or both would become an Event of Default
pursuant to Section 501.
SECTION 1006. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall 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, provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders of
Securities or coupons.
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SECTION 1007. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, so long as any Securities of
any series shall remain Outstanding, the Company shall not, and shall
not permit any Designated Subsidiary to, directly or indirectly,
create, issue, assume, incur or guarantee any indebtedness for money
borrowed which is secured by a mortgage, pledge, lien, security
interest or other encumbrance of any nature on any of the present or
future common stock of a Designated Subsidiary unless the Securities
and any coupons appertaining thereto and, if the Company so elects, any
other indebtedness of the Company ranking at least pari passu with the
Securities, shall be secured equally and ratably with (or prior to)
such other secured indebtedness for money borrowed so long as it is
outstanding and is so secured.
(b) If at any time the Company or any Designated
Subsidiary shall create, issue, assume, incur or guarantee any
indebtedness for money borrowed which is secured by any mortgage,
pledge, lien, security interest or other encumbrance to which
subsection (a) of this Section is applicable, the Company shall
promptly deliver to the Trustee:
(1) an Officers' Certificate stating that the
covenant of the Company contained in subsection (a) of this
Section that the Securities and any coupons appertaining
thereto be secured equally and ratably with (or prior to) such
other secured indebtedness for money borrowed has been
complied with; and
(2) an Opinion of Counsel to the effect that such
covenant has been complied with, and that any instruments
executed by the Company in the performance of such covenant
comply with the requirements of such covenant.
(c) In the event that the Company shall hereafter secure
the Securities and any coupons appertaining thereto equally and
ratably with (or prior to) any other indebtedness for money borrowed
pursuant to the provisions of this Section, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable
the Trustee to enforce effectively the rights of the Holders of the
Securities and any coupons appertaining thereto so secured equally and
ratably with (or prior to) such other indebtedness for money borrowed;
provided, that, the Trustee shall not be responsible for filing any
financing or continuation statements or recording any documents or
instruments in any public office at any time or times.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1007 and any covenant not currently
included in this Indenture but specified as applicable to a series of Securities
as contemplated by Section 301, with respect to the Securities of any series if
before or after the time for such compliance the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or
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condition, but no such waiver shall extend to or affect any such covenant 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 covenant or condition shall remain in full force
and effect.
SECTION 1009. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition
set forth in Section 1007, and any additional covenants not currently included
in this Indenture but specified as applicable to the Securities as contemplated
by Section 301, if
(a) with reference to this Section 1009, the Company has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 402(c)) with the Trustee, as trust funds and/or
obligations in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) money in an amount, or (ii) Government Obligations
which through the payment of interest and principal in respect thereof
in accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the
due date of any payment referred to in clause (A) or (B) of this
subsection (a) money in an amount, or (iii) a combination thereof,
sufficient, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and any installment of the
principal of (and premium, if any) and/or interest on the Outstanding
Securities of that series due on the Stated Maturity or Maturity of
such principal or installment of principal and/or interest and (B) any
mandatory sinking fund payments or analogous payments or any
Additional Amounts applicable to Securities of such series on the day
on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to the Securities of
any series;
(c) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument relating to the borrowing of money, pursuant
to which in excess of $10,000,000 principal amount is then
outstanding, to which the Company is a party or by which it is bound;
(d) such deposit would not cause the Outstanding
Securities of such series then listed on the New York Stock Exchange
to be delisted as a result thereof;
(e) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
Securities of that series shall have occurred and be continuing on the
date of such deposit;
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(f) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred;
(g) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the Company
shall have given the Trustee irrevocable direction to give notice of
such redemption in the name and at the expense of the Company, under
arrangements satisfactory to the Trustee; and
(h) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1009 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such defeasance
is effected become payable in respect of such Securities, in order to preserve
the benefits of the defeasance established hereunder with respect to such
series, the Company shall irrevocably deposit or cause to be irrevocably
deposited in accordance with the provisions of subsection (a) of this Section
1009, within ten Business Days prior to the earlier to occur of (i) one year
after the existence of such excess Additional Amounts is established and (ii)
the date the first payment in respect of any portion of such excess Additional
Amounts becomes due, such additional funds as are necessary to satisfy the
provisions of such subsection (a) as if a defeasance were being effected as of
the date of such subsequent deposit. For purposes of this paragraph, the
existence of excess Additional Amounts shall be deemed to have been established
as of the date the governmental authority imposing the tax, duty, assessment or
other governmental charge resulting in the Additional Amounts first publishes
the legislation, regulation or other enactment adopting such tax, duty,
assessment or other governmental charge. Failure to comply with the requirements
of this paragraph shall result in the termination of the benefits of the
defeasance established by this Section 1009 with respect to the Securities of
such series.
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 or pursuant to a Board Resolution. In case of any redemption at the option
of the Company of Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date 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 with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee not more than 60 days prior to the Redemption Date, from the
Outstanding Securities of such series having such terms 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 Registered Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to each
Holder of Securities to be redeemed. Failure to give such notice by mailing in
the manner therein provided to the Holder of any Registered Security designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
Any notice that is given in the manner provided in Section 106 shall
be conclusively presumed to have been duly given, whether or not the Holder of
Securities receives the notice.
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All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest, if any;
(c) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(d) in case any Registered Security is to be redeemed in
part only, the notice which relates to such Security shall state that
on and after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new Registered
Security or Registered Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(e) that on the Redemption Date the Redemption Price and
any accrued interest and Additional Amounts shall become due and
payable upon each such Security or portion thereof to be redeemed and,
if applicable, that interest thereon shall cease to accrue on and
after said date;
(f) that a Holder of Securities who desires to convert or
exchange Securities called for redemption must satisfy the
requirements for conversion or exchange contained in such Securities,
the then existing conversion or exchange price or rate, and the date
and time when the option to convert or exchange shall expire;
(g) 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 any accrued
interest and Additional Amounts pertaining thereto;
(h) that the redemption is for a sinking fund, if such is
the case;
(i) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished;
(j) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on the Redemption Date pursuant to
Section 305 or otherwise, the last date, as determined by the Company,
on which such exchanges may be made; and
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(k) the CUSIP number or the Euroclear or the Cedel
reference numbers (or any other numbers used by a Depository to
identify such Securities), if any, of the Securities to be redeemed.
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 except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest
on and Additional Amounts in respect of, all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
If notice of redemption has been given as provided in Section 1104,
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
any accrued interest (and any Additional Amounts) 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, except as otherwise provided with
respect to Securities convertible into, or exchangeable for, Common Stock,
Preferred Stock, Debt Warrants, Common Stock Warrants, Preferred Stock Warrants
or other Securities or securities, 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 Regular
Record Dates or Special Record Dates, as the case may be, 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
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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 any interest (and any Additional Amounts)
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency for such Security 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, any premium, and, to the
extent permitted by applicable law, the interest required to be paid thereon
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his 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 Registered Security or Registered Securities of the same series
containing identical terms and provisions, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge,
a new Security in global form in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Security in global form 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 such series is herein referred to as
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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 may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of a series required to be made
pursuant to the terms of such Securities (i) deliver Outstanding Securities of
such series (other than any of such Securities previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (ii) apply as a credit
Securities of such 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, as provided for by the terms of such Securities; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the applicable 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 (or such shorter notice as the Trustee may approve), the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory 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 or crediting Securities of that series pursuant to
Section 1202, the basis for any such crediting, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
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.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. 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 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 a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable, in whole or in part, 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 or pursuant to this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities for any purpose specified in Section 1401, to be held at
such time and at such place in London or in such other place outside
the United States 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, by or pursuant to a
Board Resolution, or the Holders of at least 10% in aggregate 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 1401, 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 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 1403. 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 (i) a Holder of one or more Outstanding Securities of
such series, or (ii) 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 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or which the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities expressly provides may be
made, given, or taken by the Holders of a specified percentage that is less or
greater than a majority in aggregate principal amount of the Outstanding
Securities of a series, then with respect to such action (and only such
action), the Persons entitled to vote such lesser or greater percentage in
aggregate principal amount of the Outstanding Securities of such series shall
constitute a quorum. 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.
Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 1402(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 with
respect to each action to be considered at such meeting.
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Except as limited by the proviso to Section 902, any resolution
presented to a meeting duly convened or an adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in aggregate 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 or which the supplemental indenture, Board
Resolution or other instrument authorizing such series of Securities expressly
provides may be made, given or taken by the Holders of a specified percentage,
that is less or greater than a majority, in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting duly convened or
an adjourned meeting duly reconvened and at which a quorum is present 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 1405. 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 any 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 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify
to the holding of Bearer Securities. 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 1402(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 Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or
counted at any
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meeting in 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 1402 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority
in aggregate 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 1406. 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 1402 and, if
applicable, Section 1404. 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.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. SECURITIES IN FOREIGN CURRENCIES.
Except as otherwise provided in the definition of "Outstanding" in
Section 101, whenever this Indenture provides for any distribution to Holders
of Securities, in the absence of any provision to the contrary in the form of
Security of any particular series, any amount in respect of any Security
denominated in a currency or currencies other than Dollars shall be treated for
any such distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such distribution
(or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such distribution) as the Company may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
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SECTION 1502. CONVERSION OR EXCHANGE OF SECURITIES.
The Company may issue Securities that are convertible into, or
exchangeable for, Common Stock, Common Stock Warrants, Preferred Stock,
Preferred Stock Warrants, Debt Warrants or other Securities or securities, in
which case all terms and conditions relating to such conversion or exchange
shall be as provided in or pursuant to an appropriate Board Resolution or in
any indenture supplemental hereto or as otherwise contemplated by Section 301.
SECTION 1503. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. Such waiver and release shall be part of the consideration for the
issuance of the Securities.
* * * * *
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.
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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.
AMERICAN GENERAL CORPORATION
[CORPORATE SEAL]
By
-------------------------------
Attest:
By:
-------------------------------
------------------
BANKERS TRUST COMPANY, as Trustee
[CORPORATE SEAL]
By
-------------------------------
Attest:
------------------
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00
XXXXX XX XXXXX: )
)
COUNTY OF XXXXXX: )
On the day of , 1997, before me personally came ___________________,
to me known, who, being by me duly sworn, did depose and say that he is
_________________________ of AMERICAN GENERAL CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
Notary Public
STATE OF TEXAS: )
)
COUNTY OF XXXXXX: )
On the day of , 1997, before me personally came
____________________________, to me known, who, being by me duly sworn, did
depose and say that he is _____________________________ of AMERICAN GENERAL
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
------------------------------
Notary Public
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00
XXXXX XX XXX XXXX: )
)
COUNTY OF NEW YORK: )
On the ____ day of ____________, 1997, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he resides at ________________, __________; that he is a
_______________________ of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; and that he signed
his name thereto by authority of the bylaws of said corporation.
------------------------------
Notary Public
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