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EXHIBIT 4(b)
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AMERICAN GENERAL CORPORATION
TO
BANKERS TRUST COMPANY
TRUSTEE
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SENIOR SUBORDINATED INDENTURE
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DATED AS OF NOVEMBER 15, 1997
(SENIOR SUBORDINATED 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
Capitalized Lease Obligation....................................................................3
Certificate of a Firm of Independent Public Accountants.........................................3
Commission......................................................................................3
Common Stock....................................................................................3
Common Stock Warrants...........................................................................4
Company.........................................................................................4
Company Request.................................................................................4
Company Order...................................................................................4
Corporate Trust Office..........................................................................4
corporation.....................................................................................4
coupon..........................................................................................4
Debt Warrants...................................................................................4
Defaulted Interest..............................................................................4
Depository......................................................................................4
Dollars.........................................................................................4
ECU.............................................................................................4
European Community..............................................................................4
Event of Default................................................................................5
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........................................................................................6
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New York Banking Day............................................................................6
New York Facility...............................................................................6
Officers' Certificate...........................................................................6
Opinion of Counsel..............................................................................6
optional sinking fund payment...................................................................7
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................................................................................9
Registered Security.............................................................................9
Regular Record Date.............................................................................9
Required Currency...............................................................................9
Representative..................................................................................9
Responsible Officer.............................................................................9
Security .......................................................................................9
Securities......................................................................................9
Security Register...............................................................................9
Security Registrar..............................................................................9
Special Record Date.............................................................................9
Stated Maturity.................................................................................9
Superior Indebtedness...........................................................................9
Trust Indenture Act............................................................................11
Trustee ......................................................................................11
United States..................................................................................11
United States Alien............................................................................11
U.S. Depository................................................................................11
Depository.....................................................................................11
SECTION 102. Compliance Certificates and Opinions.........................................12
SECTION 103. Form of Documents Delivered to Trustee.......................................12
SECTION 104. Acts of Holders..............................................................13
SECTION 105. Notices, etc., to Trustee and Company........................................15
SECTION 106. Notice to Holders of Securities; Waiver......................................16
SECTION 107. Language of Notices, etc.....................................................17
SECTION 108. Conflict with Trust Indenture Act............................................17
SECTION 109. Effect of Headings and Table of Contents.....................................17
SECTION 110. Successors and Assigns.......................................................17
SECTION 111. Separability and Saving Clauses..............................................17
SECTION 112. Benefits of Indenture........................................................17
SECTION 113. Governing Law................................................................18
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SECTION 114. Legal Holidays...............................................................18
SECTION 115. Judgment Currency............................................................18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities..........................................................19
SECTION 202. Form of Trustee's Certificate of Authentication..............................19
SECTION 203. Securities in Global Form....................................................20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.........................................20
SECTION 302. Currency; Denominations......................................................24
SECTION 303. Execution, Authentication, Delivery and Dating...............................24
SECTION 304. Temporary Securities.........................................................26
SECTION 305. Registration, Registration of Transfer and Exchange..........................27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............................31
SECTION 307. Payment of Interest and Certain Additional Amounts;
Rights Preserved.............................................................32
SECTION 308. Persons Deemed Owners........................................................33
SECTION 309. Cancellation.................................................................34
SECTION 310. Computation of Interest......................................................34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture......................................35
SECTION 402. Application of Trust Money...................................................37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................................38
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........................39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................................40
SECTION 504. Trustee May File Proofs of Claim.............................................41
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons........................................................42
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SECTION 506. Application of Money Collected...............................................42
SECTION 507. Limitation on Suits..........................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.....................................43
SECTION 509. Restoration of Rights and Remedies...........................................44
SECTION 510. Rights and Remedies Cumulative...............................................44
SECTION 511. Delay or Omission Not Waiver.................................................44
SECTION 512. Control by Holders of Securities.............................................44
SECTION 513. Waiver of Past Defaults......................................................45
SECTION 514. Undertaking for Costs........................................................45
SECTION 515. Waiver of Stay or Extension Laws.............................................46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................................46
SECTION 602. Notice of Defaults...........................................................47
SECTION 603. Certain Rights of Trustee....................................................47
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......................49
SECTION 605. May Hold Securities..........................................................49
SECTION 606. Money Held in Trust..........................................................49
SECTION 607. Compensation and Reimbursement...............................................49
SECTION 608. Disqualifications; Conflicting Interests.....................................50
SECTION 609. Corporate Trustee Required; Eligibility......................................50
SECTION 610. Resignation and Removal; Appointment of Successor...........................50
SECTION 611. Acceptance of Appointment by Successor.......................................52
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.....................................................................53
SECTION 613. Appointment of Authenticating Agent..........................................53
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders of Registered Securities.............................................55
SECTION 702. Preservation of Information; Communications to Holders.......................56
SECTION 703. Reports by Trustee...........................................................56
SECTION 704. Reports by Company...........................................................57
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS......................57
SECTION 802. Rights and Duties of Successor Entity........................................58
SECTION 803. Officers' Certificate and Opinion of Counsel.................................58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders...........................59
SECTION 902. Supplemental Indentures with Consent of Holders..............................62
SECTION 903. Execution of Supplemental Indentures.........................................63
SECTION 904. Effect of Supplemental Indentures............................................64
SECTION 905. Conformity with Trust Indenture Act..........................................64
SECTION 906. Reference in Securities to Supplemental Indentures..........................64
SECTION 907. Effect on Superior Indebtedness..............................................64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and any Premium, Interest and
Additional Amounts...........................................................64
SECTION 1002. Maintenance of Office or Agency..............................................65
SECTION 1003. Money for Securities Payments to be Held in Trust............................66
SECTION 1004. Additional Amounts...........................................................67
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults......................68
SECTION 1006. Corporate Existence..........................................................68
SECTION 1007. Waiver of Certain Covenants..................................................68
SECTION 1008. Defeasance of Certain Obligations............................................69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................................70
SECTION 1102. Election to Redeem; Notice to Trustee........................................71
SECTION 1103. Selection by Trustee of Securities to be Redeemed............................71
SECTION 1104. Notice of Redemption.........................................................71
SECTION 1105. Deposit of Redemption Price..................................................73
SECTION 1106. Securities Payable on Redemption Date........................................73
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SECTION 1107. Securities Redeemed in Part..................................................74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................................74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........................75
SECTION 1203. Redemption of Securities for Sinking Fund....................................75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.....................................................76
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called....................................76
SECTION 1402. Call, Notice and Place of Meetings...........................................76
SECTION 1403. Persons Entitled to Vote at Meetings.........................................77
SECTION 1404. Quorum; Action...............................................................77
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings......................................................78
SECTION 1406. Counting Votes and Recording Action of Meetings.............................79
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Securities and Coupons Subordinated to Superior
Indebtedness.................................................................79
SECTION 1502. Distribution on Dissolution, Liquidation or Reorganization;
Default......................................................................79
SECTION 1503. Distributions Must Be Paid Over..............................................81
SECTION 1504. Subrogation..................................................................81
SECTION 1505. Relative Rights..............................................................81
SECTION 1506. Payments on Securities or Coupons Permitted..................................82
SECTION 1507. Authorization of Holders to Trustee to Effect Subordination..................82
SECTION 1508. Notices to Trustee...........................................................82
SECTION 1509. Trustee Entitled to Rely.....................................................83
SECTION 1510. Trustee as Holder of Superior Indebtedness...................................84
SECTION 1511. Trustee Not Fiduciary for Holders of Superior Xxxxxxxxxxxx...................00
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SECTION 1512. Distribution or Notice to Representative.....................................84
SECTION 1513. Trust Moneys Not Subordinated................................................84
SECTION 1514. Modification of Terms of Superior Indebtedness...............................84
SECTION 1515. Reliance by Holders of Indebtedness on Subordination
Provisions...................................................................85
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Securities in Foreign Currencies.............................................85
SECTION 1602. Conversion or Exchange of Securities.........................................85
SECTION 1603. No Recourse Against Others...................................................85
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SENIOR SUBORDINATED 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 senior subordinated 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.
"Capitalized Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a lease of (or
other indebtedness arrangements conveying the right to use) real or
personal property of such Person which is required to be classified and
accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted
accounting principles.
"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
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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.
"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."
"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.
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"Event of Default" has the meaning specified in Section 501.
"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
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into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated by
Section 301.
"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.
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"optional sinking fund payment" has the meaning specified in
Section 1201.
"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
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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 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.
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"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.
"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.
"Representative" means the trustee, agent or representative
(if any) for an issue of Superior Indebtedness.
"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.
"Superior Indebtedness" means the principal of and any premium
and interest on, and any other payment due pursuant to, any of the
following, whether outstanding on the date of execution of this
Indenture or thereafter incurred, created or assumed:
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(a) all obligations of the Company for money
borrowed;
(b) all obligations of the Company evidenced by
notes, debentures, bonds or other securities, including
obligations incurred, created or assumed in connection with
the acquisition of property, assets or businesses;
(c) all Capitalized Lease Obligations of the
Company;
(d) all reimbursement obligations of the Company with
respect to letters of credit, bankers acceptance or similar
facilities issued for the account of the Company;
(e) all obligations of the Company issued or assumed
as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business);
(f) all payment obligations of the Company under any
interest rate, currency or commodity swap agreement, option
agreement, hedge agreement, forward contract, or similar
agreement designed to protect the Company or another Person
against fluctuations in interest rates, exchange rates or
commodity prices;
(g) all obligations of the type referred to in
clauses (a) through (f) above of another Person or all
dividends of another Person, the payment of which, in either
case, the Company has assumed or guaranteed, or for which the
Company is responsible or liable, directly or indirectly,
jointly or severally, as obligor, guarantor or otherwise; and
(h) all amendments, modifications, renewals,
extensions, refinancings, replacements and refundings by the
Company of any such indebtedness referred to in clauses (a)
through (g) above (and of any such amended, modified, renewed,
extended, refinanced, replaced or refunded indebtedness or
obligations);
other than (i) any indebtedness, renewal, extension, refinancing,
replacement, refunding, assumption, guarantee or other obligation that
expressly provides, or in the instrument creating or evidencing the
same or the assumption or guarantee of the same it is expressly
provided, that such indebtedness, renewal, extension, refinancing,
replacement, refunding, assumption, guarantee or other obligation is
junior in right of payment to or is pari passu with the Securities;
(ii) the Securities and the 13 1/2% Restricted Subordinated Notes Due
2002 of the Company issued pursuant to an Indenture, dated as of
January 3, 1994, between the Company and Texas Commerce Bank, National
Association, which 13 1/2% Restricted Subordinated Notes shall rank
pari passu with the Securities; (iii) the 6% Series A Convertible
Junior Subordinated Debentures due 2025, the 7.57% Junior Subordinated
Deferrable Interest Debentures, Series A, the 8 1/8% Junior
Subordinated Deferrable Interest Debentures, Series B, the 8 1/8%
Series B Junior Subordinated Debentures and the 8.45% Series A Junior
Subordinated Debentures of the Company and any other junior
subordinated
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debentures of the Company issued under the Indenture, dated as of May
15, 1995, between the Company and The Chase Manhattan Bank, formerly
Chemical Bank, as trustee, under the Indenture, dated as of December 1,
1996, between the Company and Bankers Trust Company as trustee or under
the Junior Subordinated Indenture, dated as of November 15, 1997,
between the Company and Bankers Trust Company, as trustee; and (iv) the
guarantee and other obligations of the Company pursuant to the
Guarantee Agreement, dated as of May 24, 1995, with respect to certain
securities issued by American General Capital, L.L.C., the Guarantee
Agreement, dated as of May 24, 1995, with respect to certain securities
issued by American General Delaware, L.L.C., the Guarantee Agreement,
dated as of December 4, 1996, with respect to certain securities issued
by American General Institutional Capital A, the Guarantee Agreement,
dated as of March 14, 1997, with respect to certain securities issued
by American General Institutional Capital B and any Guarantee Agreement
of the Company with respect to any preferred securities of American
General Capital I, American General Capital II, American General
Capital III or American General Capital IV.
"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 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
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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
(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
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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 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.
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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 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
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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 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.
Additionally, any notice provided or permitted to be given or furnished
to the Trustee pursuant to Article Fifteen shall be sufficient if given or
furnished in the manner provided in the last paragraph of Section 1508.
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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 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.
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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.
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, the holders of Superior Indebtedness and the
Holders of Securities or coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons, 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 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.
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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, 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:
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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.
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
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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;
(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
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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 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);
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(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 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
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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 including,
without limitation, the provisions of Article Fifteen).
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.
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.
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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
(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.
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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 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
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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 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.
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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 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.
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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 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
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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 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.
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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 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.
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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 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
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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 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
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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 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.
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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 Xxxxxxx 000, (xxx) 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,
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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 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.
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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 1008 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 1008 or any such
supplemental indenture; but such 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
1008 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 1008 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.
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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 occasioned by the provisions of Article Fifteen or 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 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,
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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.
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 of any series 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
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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
(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,
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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.
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 declaration of 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;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due 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, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall, subject to the provisions of Article Fifteen, be for the
ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, 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: Subject to the provisions of Article Fifteen, 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.
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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 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, but subject to
Article Fifteen, 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.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case 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 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
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(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.
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.
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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
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;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
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 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,
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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 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.
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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.
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
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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.
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
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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, 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
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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.
(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
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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 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
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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 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.
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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 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
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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 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.
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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 of any series become admitted to trading on any national
securities exchange.
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
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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.
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 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.
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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 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 or any series of Securities; or
(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
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(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
(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
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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 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
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(13) such supplemental indenture shall contain a
provision substantially to the same effect as the last
paragraph of Section 1008 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) subject to Section 902(b) and Section 907, to make any
change in Article Fifteen that would limit or terminate the benefits
available to any holder of Superior Indebtedness under such Article; or
(m) 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:
(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
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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 modify any provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to such Holder; 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 1007, 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 1007, 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.
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
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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.
SECTION 907. EFFECT ON SUPERIOR INDEBTEDNESS.
No supplemental indenture shall adversely affect the rights of any
Holder of Superior Indebtedness under Article Fifteen without the consent of
such Holder.
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 thereof, other than Additional Amounts, if any, payable as
provided in Section 1004 in respect of
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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 purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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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;
(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
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(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 of any series 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 (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
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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.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
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The Company may omit in any particular instance to comply with any
covenant not currently included in this Indenture but specified as applicable to
the Securities of any series as contemplated by Section 301, 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 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 1008. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition
set forth in any additional covenants not currently included in this Indenture
but specified as applicable to the Securities of any series as contemplated by
Section 301, if
(a) with reference to this Section 1008, 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;
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(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;
(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 1008 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
1008, 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 1008 with respect to the Securities of
such series.
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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.
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.
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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.
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
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pursuant to Section 305 or otherwise, the last date, as determined by
the Company, on which such exchanges may be made; and
(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.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that 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.
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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 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 of any series 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
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held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting 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
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES AND COUPONS SUBORDINATED TO SUPERIOR
INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities and coupons, by his acceptance thereof,
likewise covenants and agrees, that the indebtedness represented by the
Securities and coupons and the payment of the principal of and any premium and
interest on and Additional Amounts in respect of each and all of the Securities
and coupons is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Superior Indebtedness.
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SECTION 1502. DISTRIBUTION ON DISSOLUTION, LIQUIDATION OR
REORGANIZATION; DEFAULT.
Anything in this Indenture or in the Securities of any series or
coupons to the contrary notwithstanding, the indebtedness evidenced by the
Securities and coupons and the payment of the principal of and any premium and
interest on and Additional Amounts in respect of each and all of the Securities
and coupons shall be subordinate and junior in right of payment, to the extent
and in the manner hereinafter set forth, to all Superior Indebtedness:
(a) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Company, or the
proceeds thereof, to creditors of the Company or upon any indebtedness
of the Company, occurring by reason of the liquidation, dissolution or
other winding up of the Company, or by reason of any execution, sale,
receivership, insolvency or bankruptcy proceedings, or proceedings for
reorganization, or readjustment of the Company or its properties
(subject to the power of a court of competent jurisdiction to make
other equitable provision reflecting the rights conferred in this
Indenture upon the Superior Indebtedness and the holders thereof with
respect to the Securities and coupons and the Holders thereof by a
lawful plan of reorganization under applicable bankruptcy law), then in
any such event the holders of any and all Superior Indebtedness shall
be preferred in the payment of their claims over the indebtedness
evidenced by the Securities and coupons, and such Superior Indebtedness
(including, without limitation, any interest thereon accruing after the
commencement of any such proceeding) shall be first paid and satisfied
in full before any payment or distribution of any kind or character,
either in cash, property or securities, shall be made upon any of the
Securities or coupons;
(b) In the event that the principal of the Securities of any
series (or in the case of Original Issue Discount Securities, the
portion of the principal amount thereof referred to in Section 502) is
declared due and payable before its Stated Maturity because of the
occurrence of an Event of Default hereunder with respect to such series
(under circumstances when the provisions of the foregoing subsection
(a) or the following subsection (c) shall not be applicable), the
holders of Superior Indebtedness outstanding at the time the principal
of such Securities (or in the case of Original Issue Discount
Securities, such portion of the principal amount) so becomes due and
payable because of such occurrence of an Event of Default hereunder
shall, so long as such declaration has not been rescinded and annulled
pursuant to Section 502, be entitled to declare immediately due and
payable on demand all or any part of such Superior Indebtedness owing
and payable to such holders, regardless of any other maturities or
terms of such Superior Indebtedness, and in the event such Superior
Indebtedness shall be declared so immediately due and payable, all the
principal thereof, and any premium, interest and other amounts due
thereon shall first be paid in cash before any payment, directly or
indirectly, is made on account of the principal of or any premium or
interest on or Additional Amounts in respect of the indebtedness
evidenced by the Securities and coupons of such series; provided, that
nothing herein shall prevent the Holders of the Securities and coupons
of such series from seeking any remedy allowed at law or in equity so
long as any judgment or decree obtained thereby makes provision for
enforcing this subsection; and
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(c) In the event that there shall be any default in payment of
the principal of or any premium or interest on, or other amount payable
with respect to, any Superior Indebtedness or in the event that any
Superior Indebtedness is declared due and payable before its stated
maturity because of the occurrence of an event of default under the
terms of such Superior Indebtedness, the Holders of the Securities and
coupons and the Trustee for their benefit shall not be entitled to
receive any payment on account of principal or any premium or interest
or any Additional Amounts on or with respect to the Securities or any
coupons appertaining thereto unless payment in full of all principal
of, and any premium and interest on, and all other amounts payable with
respect to, such Superior Indebtedness shall have been paid in cash or
provided for or, in the case of a declaration of acceleration, such
declaration shall have been rescinded and annulled pursuant to the
provisions of such Superior Indebtedness. The Trustee, forthwith upon
receipt of any notice received by it from the Company or a holder or
holders of Superior Indebtedness or from a Representative thereof of
any such default in payment or declaration, shall promptly give notice
thereof to each Holder of any Security or coupon at the time
Outstanding in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act.
SECTION 1503. DISTRIBUTIONS MUST BE PAID OVER.
If, despite the provisions of Section 1502, any payment or distribution
shall be paid or delivered to any Holder of the Securities or coupons or to the
Trustee for their benefit before all Superior Indebtedness shall have been paid
in full, or provision shall have been made therefor, such payment or
distribution shall be held in trust for and paid and delivered to the holders of
Superior Indebtedness (or their Representatives) until all Superior Indebtedness
shall have been paid in full.
SECTION 1504. SUBROGATION.
Subject to the payment in full of all Superior Indebtedness, the
Holders of the Securities and coupons shall be subrogated to the rights of the
holders of Superior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to Superior Indebtedness until
the principal of and any premium, interest and Additional Amounts in respect of
the Securities and coupons shall be paid in full and no such payments or
distributions to the holders of the Superior Indebtedness of cash, property or
securities by virtue of this Article which otherwise would have been made to the
Holders of the Securities or coupons shall, as between the Company, its
creditors other than the holders of Superior Indebtedness, and the Holders of
the Securities or coupons, be deemed to be a payment by the Company to or on
account of the Superior Indebtedness.
SECTION 1505. RELATIVE RIGHTS.
The provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Securities and coupons, on
the one hand, and the holders of Superior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities or coupons of any series of Securities is intended to or shall:
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(a) impair, as between the Company, its creditors other than
the holders of Superior Indebtedness, and the Holders of the Securities
and coupons, the obligation of the Company, which is unconditional and
absolute, to pay to the Holders of the Securities and coupons the
principal of and any premium and interest on and Additional Amount in
respect of the Securities and coupons as and when the same shall become
due and payable in accordance with their terms;
(b) affect the relative rights of the Holders of the
Securities and coupons and creditors of the Company other than the
holders of Superior Indebtedness; or
(c) prevent the Trustee or the Holder of any Securities or
coupons from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Superior Indebtedness in respect
of cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 1506. PAYMENTS ON SECURITIES OR COUPONS PERMITTED.
Nothing contained in this Indenture or in any of the Securities of any
series or coupons shall (a) affect the obligation of the Company to make, or
prevent the Company from making, at any time except as provided in Section 1502,
payments of principal of and any premium or interest on or Additional Amounts in
respect of the Securities or coupons or (b) prevent the application by the
Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of and any premium or interest on or Additional Amounts
in respect of the Securities or coupons, unless the Trustee shall have received,
in the manner prescribed in Section 1508, written notice of any event
prohibiting the making of such payment at least two Business Days prior to the
date fixed for such payment.
SECTION 1507. AUTHORIZATION OF HOLDERS TO TRUSTEE TO EFFECT
SUBORDINATION.
Each Holder of Securities or coupons by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
If the Trustee or any Holder of Securities or coupons does not file a
proper claim or proof of debt in the form required in any proceeding referred to
in Section 1502 prior to 30 days before the expiration of the time to file such
claim in such proceeding, then the holder of any Superior Indebtedness or its
Representative is hereby authorized, and has the right, to file an appropriate
claim or claims for or on behalf of such Holder of Securities or coupons.
SECTION 1508. NOTICES TO TRUSTEE.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture, neither the Trustee nor any Paying Agent (other than the
Company) shall be charged with knowledge of the existence of any Superior
Indebtedness or of any event which would prohibit the making of any
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payment of moneys to or by the Trustee or such Paying Agent or which would end
such prohibition, unless and until a Responsible Officer of the Trustee assigned
to its Corporate Trust Office or such Paying Agent shall have received written
notice thereof from the Company or from a holder or holders of any Superior
Indebtedness or from the Representative for any such holder; provided, however,
that if the Trustee or Paying Agent shall not have received with respect to such
moneys at least two Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of the principal of or any premium or interest on or
Additional Amounts in respect of any Security or coupon) the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee or Paying Agent shall have full power and authority
to receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
Any notice required or permitted to be given to the Trustee by the
Company, a holder of Superior Indebtedness or any Representative pursuant to
this Article shall be in writing and shall be sufficient for every purpose
hereunder if in writing and either (a) sent via facsimile to the Trustee to a
facsimile number provided by the Trustee, the receipt of which shall be
confirmed via telephone, or (b) mailed, first class postage prepaid, or sent by
overnight carrier, to the Trustee addressed to it, attention of its Corporate
Trust Office, at the address of its Corporate Trust Office or at any other
address furnished in writing to the Company, such holder of Superior
Indebtedness, or such Representative.
SECTION 1509. TRUSTEE ENTITLED TO RELY.
The Trustee and any Paying Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Superior Indebtedness (or a Representative on behalf of such holder)
to establish that a notice referred to in Section 1502(c), 1506 or 1508 has been
given by a holder of Superior Indebtedness or a Representative on behalf of any
such holder. Upon any payment or distribution pursuant to this Article, the
Trustee and the Holders shall be entitled to rely (a) upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 1502 are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to such Holders or (c) upon the holders of Superior
Indebtedness and their Representatives for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Superior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article. In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person as a holder of Superior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Superior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
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SECTION 1510. TRUSTEE AS HOLDER OF SUPERIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this
Article in respect of any Superior Indebtedness at any time held by it to the
same extent as any other holder of Superior Indebtedness and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
SECTION 1511. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SUPERIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Superior Indebtedness and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Holders of Securities or coupons
or the Company or any other Person, money or assets to which any holders of
Superior Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1512. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Superior Indebtedness, the distribution may be made or the notice given to their
Representative (if any).
SECTION 1513. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of Government Obligations held in trust under Section
402 or 1008 or under a supplemental indenture containing the provisions
described in Section 901(i) by the Trustee for the payment of principal of, and
premium, if any, and interest on, the Securities and any amounts due the Trustee
pursuant to Section 607 hereof shall not be subordinated to the prior payment of
any Superior Indebtedness or subject to the restrictions set forth in this
Article, and none of the Holders thereof shall be obligated to pay over any such
amount to the Company or any holder of Superior Indebtedness or any other
creditor of the Company.
SECTION 1514. MODIFICATION OF TERMS OF SUPERIOR
INDEBTEDNESS.
Any renewal or extension of the time of payment of any Superior
Indebtedness or the exercise by the holders of Superior Indebtedness of any of
their rights under any instrument creating or evidencing Superior Indebtedness,
including without limitation the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Securities of any
series, the coupons appertaining thereto or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of any Superior Indebtedness, or of
any of the terms, covenants or conditions of any indenture or other instrument
under which any Superior Indebtedness is outstanding, or the release of any
security for the payment of any Superior Indebtedness, whether or not such
action is in accordance with the provisions of any applicable document, shall in
any way alter or affect any of the provisions of this Article or of the
Securities or coupons of any series relating to the subordination thereof.
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No right of any holder of Superior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities and coupons shall
be impaired by any act or failure to act by the Company or by its failure to
comply with this Indenture.
SECTION 1515. RELIANCE BY HOLDERS OF INDEBTEDNESS ON
SUBORDINATION PROVISIONS.
Each Holder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Superior Indebtedness, whether such
Superior Indebtedness was created or acquired before or after the issuance of
the Securities, to acquire and continue to hold, or to continue to hold, such
Superior Indebtedness and such holder of Superior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Superior Indebtedness.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. 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.
SECTION 1602. 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 1603. 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
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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
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Attest:
By:
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BANKERS TRUST COMPANY, as Trustee
[CORPORATE SEAL]
By
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Attest:
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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.
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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.
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Notary Public
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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.
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Notary Public
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