EXHIBIT 4.2
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KEYSTONE FINANCIAL MID-ATLANTIC FUNDING CORP.,
Issuer
and
KEYSTONE FINANCIAL, INC.,
Guarantor
to
BANKERS TRUST COMPANY,
Trustee
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SUBORDINATED INDENTURE
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Dated as of __________, 1997
Subordinated Debt Securities
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KEYSTONE FINANCIAL MID-ATLANTIC FUNDING CORP.
and
KEYSTONE FINANCIAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Subordinated Indenture dated as of ________, 1997
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Trust Indenture Act Section Indenture Section
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(S)310 (a)(1).............................................. 709
(a)(2).............................................. 709
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b) ................................................ 708, 710
(S)311 (a) ................................................ 713(a), (c)
(b) ................................................ 713(b), (c)
(b)(2) ............................................. 803(a)(2), 803(b)
(S)312 (a) ................................................ 801, 802(a)
(b) ................................................ 802(b)
(c) ................................................ 802(c)
(S)313 (a) ................................................ 803(a)
(b)(1) ............................................. Not Applicable
(b)(2) ............................................. 803(b)
(c) ................................................ 803(c)
(d) ................................................ 803(d)
(S)314 (a) ................................................ 804
(b) ................................................ Not Applicable
(c)(1) ............................................. 102
(c)(2) ............................................. 102
(c)(3) ............................................. Not Applicable
(d) ................................................ Not Applicable
(e) ................................................ 102
(S)315 (a) ................................................ 701(a)
(b) ................................................ 702, 803(a)(6)
(c) ................................................ 701(b)
(d) ................................................ 701(c)
(d)(1) ............................................. 701(a)(1), (c)(1)
(d)(2) ............................................. 701(c)(2)
(d)(3) ............................................. 701(c)(3)
(e) ................................................ 614
(S)316 (a) ................................................ 101
(a)(1)(A) .......................................... 602, 612
(a)(1)(B) .......................................... 613
(a)(2) ............................................. Not Applicable
(b) ................................................ 608
(S)317 (a)(1) ............................................. 603
(a)(2) ............................................. 604
(b) ................................................ 1103
(S)318 (a) ................................................ 108
_____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Subordinated Indenture.
TABLE OF CONTENTS
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Page
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RECITALS OF THE COMPANY.............................................. 1
RECITALS OF THE GUARANTOR............................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions............................................ 2
Section 102. Compliance Certificates and Opinions................... 9
Section 103. Form of Documents Delivered to Trustee................. 10
Section 104. Acts of Holders........................................ 11
Section 105. Notices, etc. to Trustee, Company and
Guarantor.............................................. 13
Section 106. Notice to Holders of Securities; Waiver................ 14
Section 107. Language of Notices.................................... 15
Section 108. Conflict with Trust Indenture Act...................... 15
Section 109. Effect of Headings and Table of Contents............... 16
Section 110. Successors and Assigns................................. 16
Section 111. Separability Clause.................................... 16
Section 112. Benefits of Indenture.................................. 16
Section 113. Governing Law.......................................... 16
Section 114. Legal Holidays......................................... 16
ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES
Section 201. Forms Generally........................................ 17
Section 202. Form of Trustee's Certificate of
Authentication......................................... 17
Section 203. Securities in Global Form.............................. 18
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series................... 18
Section 302. Denominations.......................................... 21
Section 303. Execution, Authentication, Delivery
and Dating............................................. 21
Section 304. Temporary Securities................................... 23
Section 305. Registration, Transfer and Exchange.................... 24
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................. 28
Section 307. Payment of Interest; Interest Rights
Preserved.............................................. 29
Section 308. Persons Deemed Owners.................................. 31
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Section 309. Cancellation........................................... 32
Section 310. Computation of Interest................................ 32
ARTICLE FOUR
GUARANTEES OF SECURITIES
Section 401. Unconditional Guarantee................................ 33
Section 402. Execution, Authentication and Delivery................. 34
Section 403. Subordination.......................................... 34
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 501. Satisfaction and Discharge of Indenture................ 34
Section 502. Application of Trust Money............................. 36
ARTICLE SIX
REMEDIES
Section 601. Events of Default...................................... 36
Section 602. Acceleration of Maturity; Rescission and
Annulment.............................................. 37
Section 603. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 38
Section 604. Trustee May File Proofs of Claim....................... 39
Section 605. Trustee May Enforce Claims without
Possession of Securities or Coupons.................... 40
Section 606. Application of Money Collected......................... 41
Section 607. Limitation on Suits.................................... 41
Section 608. Unconditional Right of Holders to
Receive Principal, Premium and Interest................ 42
Section 609. Restoration of Rights and Remedies..................... 42
Section 610. Rights and Remedies Cumulative......................... 42
Section 611. Delay or Omission Not Waiver........................... 43
Section 612. Control by Holders of Securities....................... 43
Section 613. Waiver of Past Defaults................................ 43
Section 614. Undertaking for Costs.................................. 44
Section 615. Waiver of Stay or Extension Laws....................... 44
ARTICLE SEVEN
THE TRUSTEE
Section 701. Certain Duties and Responsibilities.................... 45
Section 702. Notice of Defaults..................................... 46
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Section 703. Certain Rights of Trustee............................. 46
Section 704. Not Responsible for Recitals or
Issuance of Securities and Guarantees................. 48
Section 705. May Hold Securities................................... 48
Section 706. Money Held in Trust................................... 48
Section 707. Compensation and Reimbursement........................ 48
Section 708. Disqualifications; Conflicting Interests.............. 49
Section 709. Corporate Trustee Required; Eligibility............... 55
Section 710. Resignation and Removal; Appointment of
Successor............................................. 56
Section 711. Acceptance of Appointment by Successor................ 58
Section 712. Merger, Conversion, Consolidation or
Succession to Business................................ 59
Section 713. Preferential Collection of Claims
Against Company and Guarantor......................... 59
Section 714. Appointment of Authenticating Agent................... 64
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 801. Company and Guarantor to Furnish Trustee
Names and Addresses of Holders........................ 66
Section 802. Preservation of Information;
Communications to Holders............................. 67
Section 803. Reports by Trustee.................................... 68
Section 804. Reports by Company and Guarantor...................... 70
ARTICLE NINE
CONSOLIDATION, MERGER AND SALES
Section 901. Company May Consolidate, Etc., Only on
Certain Terms......................................... 71
Section 902. Successor Corporation Substituted for
Company............................................... 72
Section 903. Guarantor May Consolidate, Etc., Only On
Certain Terms......................................... 72
Section 904. Successor Corporation Substituted for
Guarantor............................................. 73
Section 905. Assumption by Guarantor............................... 73
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures without Consent
of Holders............................................ 76
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Section 1002. Supplemental Indentures with Consent of Holders....... 76
Section 1003. Execution of Supplemental Indentures.................. 77
Section 1004. Effect of Supplemental Indentures..................... 77
Section 1005. Conformity with Trust Indenture Act................... 77
Section 1006. Reference in Securities to Supplemental Indentures.... 78
Section 1007. Subordination Unimpaired.............................. 78
ARTICLE ELEVEN
COVENANTS
Section 1101. Payment of Principal, Premium, if any,
and Interest.......................................... 78
Section 1102. Maintenance of Office or Agency....................... 79
Section 1103. Money for Securities Payments to Be Held
in Trust.............................................. 80
Section 1104. Additional Amounts.................................... 82
Section 1105. Company Statement as to Compliance;
Notice of Certain Defaults............................ 83
Section 1106. Guarantor Statement as to Compliance;
Notice of Certain Defaults............................ 83
Section 1107. Reserved.............................................. 84
Section 1108. Limitation on Creation of Liens....................... 84
Section 1109. Corporate Existence....................................84
Section 1110. Waiver of Certain Covenants........................... 85
ARTICLE TWELVE
REDEMPTION OF SECURITIES
Section 1201. Applicability of Article.............................. 85
Section 1202. Election to Redeem; Notice to Trustee................. 85
Section 1203. Selection by Trustee of Securities to be Redeemed..... 85
Section 1204. Notice of Redemption.................................. 86
Section 1205. Deposit of Redemption Price........................... 87
Section 1206. Securities Payable on Redemption Date................. 87
Section 1207. Securities Redeemed in Part........................... 88
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.............................. 89
Section 1302. Satisfaction of Sinking Fund Payments
with Securities....................................... 89
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Section 1303. Redemption of Securities for Sinking Fund.............. 90
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1401. Applicability of Article............................... 91
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.............. 91
Section 1502. Call, Notice and Place of Meetings..................... 91
Section 1503. Persons Entitled to Vote at Meetings................... 92
Section 1504. Quorum; Action......................................... 92
Section 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings............................ 93
Section 1506. Counting Votes and Recording Action of Meetings........ 94
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Securities Subordinated to Senior Company
Indebtedness........................................... 95
Section 1602. Guarantees Subordinated to Senior
Guarantor Indebtedness................................. 98
Section 1603. Subrogation............................................100
Section 1604. Obligation of Company and Guarantor
Unconditional..........................................101
Section 1605. Payments on Securities Permitted.......................102
Section 1606. Effectuation of Subordination by Trustee...............102
Section 1607. Knowledge of Trustee...................................102
Section 1608. Trustee's Relation to Senior Company
Indebtedness and Senior Guarantor Indebtedness.........103
Section 1609. Rights of Holders of Senior Company
Indebtedness and Senior Guarantor
Indebtedness Not Impaired..............................103
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ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Securities in Foreign Currencies......................104
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SUBORDINATED INDENTURE, dated as of ___________, 1997 (the "Indenture"),
among Keystone Financial Mid-Atlantic Funding Corp., a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the "Company"), Keystone Financial, Inc., a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the "Guarantor"), each having its principal executive office
at Front and Xxxxxx Xxxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
and Bankers Trust Company, a New York banking corporation (hereinafter called
the "Trustee"), having its Corporate Trust Office at 0 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, 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.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Guarantees provided for herein and
the endorsement of such Guarantees on the Securities. All things necessary to
make this Indenture a valid agreement of the Guarantor, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles 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 at the date of such computation; and
(4) 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.
Certain terms, used principally in Article Seven, are defined in that
Article.
"Act," when used with respect to any Holders, has the meaning specified in
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Section 104.
"Additional Amounts" means any additional amounts which are required by a
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Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
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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 the meanings correlative to
the foregoing.
2
"Authenticating Agent" means any Person authorized by the Trustee pursuant
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to Section 714 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
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country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Banking Subsidiary" means a Subsidiary which is organized as a national
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banking association under the laws of the United States or as a bank or trust
company under the laws of any State of the United States.
"Bearer Security" means any Security in the form established pursuant to
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Section 201 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company or of the
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Guarantor, as the case may be, or any committee of such board duly authorized to
act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
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or an Assistant Secretary of the Company or of the Guarantor, as the case may
be, to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day," form of Securities of any particular series pursuant to the
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provisions of this Indenture, with respect to the Trustee and any Place of
Payment means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions or trust companies in Columbus, Ohio and in
that Place of Payment are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
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this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of
3
this Indenture, and thereafter "Company" shall mean such successor corporation,
and any other obligor upon the Securities.
"Company Request," "Company Order," "Guarantor Request" and "Guarantor
--------------- ------------- ----------------- ---------
Order" mean, respectively, a written request or order signed in the name of the
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Company or the Guarantor, as the case may be, by the Chairman of the Board of
Directors, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, and delivered to the Trustee.
"Consolidated Banking Assets" means all assets owned directly or indirectly
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by any Banking Subsidiary and reflected on the Guarantor's consolidated balance
sheet prepared in accordance with generally accepted accounting principles.
"Controlled Subsidiary" means the Company, American Trust Bank, N.A.,
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Keystone National Bank and each Major Constituent Bank if at least 80% of the
outstanding shares of its Voting Stock is at the time owned by the Guarantor or
by one or more Controlled Subsidiaries of the Guarantor or by the Guarantor and
one or more Controlled Subsidiaries.
"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 at the date of original execution of this Indenture is located at 0
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American Trust Bank, N.A.,
Keystone National Bank.
"Corporation" includes corporations, associations, companies and business
-----------
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
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"Defaulted Interest" has the meaning specified in Section 307.
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"Dollars" or "$" or any similar reference shall mean the currency of the
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United States, except as may otherwise be provided in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 601.
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"Guarantee" means an unconditional guarantee of the payment of the
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Securities by the Guarantor, as more fully described in Article Four.
"Guarantor" means the Person named as the "Guarantor" in the first
---------
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of
4
this Indenture, and thereafter "Guarantor" shall mean such successor
corporation.
"Holder," when used with respect to any Security, means in the case of a
------
Registered Security, the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as defined in the first paragraph hereof
---------
and as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof.
"Interest," when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1104, includes such Additional
Amounts.
"Interest Payment Date" means the Stated Maturity of an installment of
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interest on the applicable Securities.
"Major Constituent Bank" means any Banking Subsidiary of the Guarantor, the
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Consolidated Banking Assets of which constitute 20% or more of the Guarantor's
Consolidated Banking Assets.
"Maturity," when used with respect to any Security, means the date on which
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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, request for repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
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Board, a Vice Chairman, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
or the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except
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as otherwise expressly provided in this Indenture) be an employee of or counsel
for the Company or the Guarantor, as the case may be, or other counsel who shall
be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to this
--------------------------------
Indenture which provides for declaration of an amount less than the principal
thereof to be due and payable upon acceleration pursuant to Section 602.
5
"Outstanding," when used with respect to Securities, means, as of the date
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of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or the Security
Registrar or received by the Trustee or the Security Registrar for
cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company or the Guarantor) in trust or set aside
and segregated in trust by the Company or the Guarantor (if the
Company shall act as its own, or authorize the Guarantor to act as,
Paying Agent) for the Holders of such Securities and any coupons
thereto appertaining, provided that, if such Securities are to be
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redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities and related Guarantees are
valid obligations of the Company and the Guarantor, respectively;
provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, the principal amount of
an Original Issue Discount Security that may 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 could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a), and, provided
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further, that Securities owned by the Company, the Guarantor or any other
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obligor upon the Securities or any Affiliate of the Company, the Guarantor 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, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
6
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, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
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principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
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association, 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,
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means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as provided
pursuant to Section 301(8).
"Predecessor Security" of any particular Security means every previous
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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
lost, destroyed, mutilated 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 lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date," when used with respect to any Security to be redeemed,
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means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
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means the price at which it is to be redeemed as determined pursuant to the
provisions of 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 a Registered Security on
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any Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date."
"Responsible Officer," when used with respect to the Trustee, means any
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officer of the Trustee in its Corporate Trust Office and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred
7
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case
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may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Senior Company Indebtedness" means the principal of and premium, if any,
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and interest on all indebtedness and other obligations of the Company, whether
outstanding at the date hereof or thereafter incurred or created, except such
indebtedness or obligations as are by their terms expressly stated to be
subordinated in right of payment to, or to rank pari passu with, the Securities
---- -----
or are identified in a Board Resolution or any indenture supplemental hereto as
subordinated in right of payment to, or to rank pari passu with, the Securities.
---- -----
"Senior Guarantor Indebtedness" means the principal of and premium, if any,
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and interest on all indebtedness and other obligations of the Guarantor, whether
outstanding at the date hereof or thereafter incurred or created, except such
indebtedness or obligations as are by their terms expressly stated to be
subordinated in right of payment to, or to rank pari passu with, the Guarantees
---- -----
or are identified in a Board Resolution or any indenture supplemental hereto as
subordinated in right of payment to, or to rank pari passu with, the Guarantees.
---- -----
"Special Record Date" for the payment of any Defaulted Interest on the
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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
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installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination
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the Guarantor and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
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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
8
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee"
shall mean each such Person and as used with respect to the Securities of any
series shall mean the Trustee with respect to the Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
-------------------
in force at the date as of which this instrument was executed, except as
provided in Section 1005.
"United States" means the United States of America (including the States
-------------
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
-------------------
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to the Securities of
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any series issuable or issued in whole or in part in the form of one or more
global Securities, the Person designated as U.S. Depository by the Company
pursuant to Section 301, which must be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided pursuant to
Section 301 with respect to the Securities of any series, any successor to such
Person. If at any time there is more than one such Person, "U.S. Depository"
shall mean, with respect to any series of Securities, the qualifying entity
which has been appointed with respect to the Securities of that series.
"Vice President," when used with respect to the Company, the Guarantor or
--------------
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President."
"Voting Stock" means stock of the class or classes having general voting
------------
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation provided that, for the
--------
purposes hereof, stock which carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision
9
of this Indenture, the Company or the Guarantor, as the case may be, shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
10
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or the
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor, as the
case may be, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument
Section 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by 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 agent duly appointed in writing.
If, but only if, Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by 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
Fifteen, 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 and the Guarantor.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 701)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company and the Guarantor, 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 1506.
11
Without limiting the generality of this Section 104, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301, a Holder, including a U.S. 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 this Indenture to be made,
given or taken by Holders, and a U.S. 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 U.S. Depository's standing instructions
and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. 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 this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(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 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
and the Guarantor, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein
12
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 Trustee to be satisfactory. The Trustee, the Company and the
Guarantor may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The Principal amount and serial numbers of Bearer Securities held
by the Person so executing such instrument or writing and the date of holding
the same may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company or the Guarantor shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company or the Guarantor, as the case may be,
may at their option, by Board Resolutions, 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 Act, but the
Company or the Guarantor shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act 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 Act, and for that purpose the
Outstanding Securities 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 by 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 or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent, the Company or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. Notices, etc. to Trustee, Company and
-------------------------------------
Guarantor.
---------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or
13
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder or by the Company or the Guarantor 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, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or the Guarantor, as the case may be, 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 or the
Guarantor, as the case may be.
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein or in the form of Securities
of any particular series pursuant to the provisions of this Indenture, where
this Indenture provides for notice to Holders of Securities of any event.
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class 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
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York 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 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 which is mailed in the manner
14
herein provided shall be conclusively presumed to have been duly given or
provided. In the case of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case 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 with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of any notice mailed to Holders of Registered Securities
as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
-------------------
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 or the Guarantor 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 another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provisions shall
control.
15
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 and the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or coupons or
the Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons or the
Guarantees, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors hereunder
and the Holders of Securities or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. Governing Law.
-------------
This Indenture and the Securities and coupons and the Guarantees shall be
governed by and construed in accordance with the laws of the State of New York.
Section 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at the Corporate Trust
Office and any Place of Payment, then (notwithstanding any other provision of
this Indenture or the Securities or coupons other than a provision in the
Securities which specifically states that such provision shall apply in lieu of
this Section) payment of interest or any Additional Amounts or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
16
ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES
Section 201. Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, the Guarantees
relating thereto, and temporary global Securities, if any, shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or any
indenture supplemental hereto and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Securities
or Guarantees, as evidenced by their execution of such Securities.
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. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of
--------------------------------
Authentication.
--------------
The form of the Trustee's Certificate of Authentication shall be as
follows:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By__________________________
Authorized Signatory
17
Section 203. Securities in Global Form.
-------------------------
If Securities of a series are issuable in global form, any such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities 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 reduced to reflect exchanges. Any endorsement of a 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.
Any instructions by the Company with respect to a Security in global form shall
be in writing but need not comply with Section 102.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 304, 305, 306, 1006
or 1207);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both; any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa; and whether any
Securities of the series are to be issuable initially in global form and,
if so, (i) whether beneficial owners of interests in any such global
Security may exchange such interest for Securities of such series and of
like tenor of any authorized form and denomination and
18
the circumstances under which any such exchanges may occur, if other than
in the manner specified in Section 305 and (ii) the name of the depository
or the U.S. Depository, as the case may be, with respect to any global
Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(5) 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 of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment Date
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(6) the date or dates on which the principal of such Securities is
payable;
(7) the rate or rates at which such Securities shall bear interest, if
any, or method in which such rate or rates are determined, the date or
dates from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date for the
interest payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts on such securities
shall be payable in respect of specified taxes, assessments or other
governmental charges withheld or deducted 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 of twelve 30-day months;
(8) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest on or Additional Amounts, if any, payable in
respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which such
19
Securities may be redeemed, in whole or in part, at the option of the
Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to any sinking fund or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such obligation,
and any provisions for the remarketing of such Securities;
(11) the denominations in which Registered Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities
of the series, if any, shall be issuable if other than the denomination of
$5,000;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 602;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) or interest, if
any, on any Additional Amounts in respect of such Securities shall be
payable;
(14) if the principal of (and premium, if any) or interest, if any, on
any Additional Amounts in respect of such Securities are to be payable, at
the election of the Company or a Holder thereof, in a coin or currency,
including composite currencies, other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(15) if the amount of payments of principal of (and premium, if any)
or interest, if any, on any Additional Amounts in respect of such
Securities may be determined with reference to an index, formula or other
method based on a coin or currency other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be
determined;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or
20
satisfaction of other conditions, then the form and terms of such
certificates, documents or conditions;
(17) any Events of Default with respect to the Securities of such
series, and the remedies with respect thereto, if not set forth herein; and
(18) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. 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 of any series were 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
Officers' Certificate setting forth the terms of such series.
Section 302. Denominations.
-------------
Unless other denominations and amounts may from time to time be fixed by or
pursuant to a Board Resolution, the Registered Securities of each series if any,
shall be issuable in registered form without coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities of each series, if
any, shall be issuable in the denomination of $5,000, or in such other
denominations and amounts as may from time to time be fixed by or pursuant to a
Board Resolution.
Section 303. Execution, Authentication, Delivery
-----------------------------------
and Dating.
----------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President or one of its Vice
Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its 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.
21
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 at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company, with Guarantees endorsed
thereon executed by the Guarantor, to the Trustee for authentication, together
with the Board Resolution and Officers' Certificate or supplemental indenture
with respect to such Securities referred to in Section 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. In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 701) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form and terms of such Securities and coupons, if any, have
been established in conformity with the provisions of this Indenture;
(b) that all conditions precedent to the authentication and delivery of
such Securities together with the coupons, if any, appertaining thereto, have
been complied with and that 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 legally
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); such Opinion of
Counsel need express no opinion as to the availability of equitable remedies;
(c) that all laws and requirements in respect of the execution and delivery
by the Company of such Securities and coupons, if any, have been complied with;
and
(d) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this
22
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken.
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 714 executed by or on behalf of the Trustee
by the manual signature of one of its authorized signatories, and such
certificate 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 cancelled.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the Company
may execute and deliver to the Trustee, and upon Company Order the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities (having Guarantees duly endorsed thereon) 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
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. In the case of Bearer Securities of any
series, such temporary Securities may be in global form, representing all of the
Outstanding Bearer Securities of such series.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities of such series shall be
exchangeable upon request for definitive Securities of such series containing
identical terms and provisions upon surrender of the temporary Securities of
such series at an office
23
or agency of the Company or the Guarantor maintained for such purpose pursuant
to Section 1102, 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 principal
amount of definitive Securities (having Guarantees duly endorsed thereon) 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 therein. 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, Transfer and Exchange.
-----------------------------------
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept, at an office or agency of the Company or the
Guarantor maintained pursuant to Section 1102, a register (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company or the Guarantor shall provide for
the registration of the Registered Securities of each series and of transfers of
the Registered Securities of each series. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the Trustee shall be the initial
Security Registrar for each series of Securities. The Issuer shall have the
right to remove and replace from time to time the Security Registrar for any
series of Securities; provided that no such removal or replacement shall be
effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Issuer and shall have accepted such
appointment by the Issuer. In the event that the Trustee shall not be or shall
cease to be Security Registrar with respect to a series of Securities, it shall
have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company or the Guarantor maintained
for that series pursuant to Section 1102, 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 (having Guarantees duly
endorsed thereon) of the same series of
24
any authorized denominations, 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 may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, 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 (having Guarantees duly
endorsed thereon) which the Holder making the exchange is entitled to receive.
If so provided with respect to Securities of a series, at the option of the
Holder, Bearer Securities of any such series may be exchanged for Registered
Securities of the same series containing identical terms and provisions, of any
authorized denominations and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there 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 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
-------- -------
1102, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series 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 date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (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
25
Defaulted Interest, as the case may be, will 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 will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
If expressly provided 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 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 (having
Guarantees duly endorsed thereon) which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable only if
(i) the Securities Depository is at any time unwilling or unable to continue as
Securities Depository and a successor depository is not appointed by the Company
within 60 days, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of any authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series
(having Guarantees duly endorsed thereon) in aggregate principal amount equal to
the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such global
Securities shall be surrendered from time to time by the U.S. Depository or such
other depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such depository, as the case may be, which instructions shall be
in writing but need not comply with Section 102 or be accompanied by an Opinion
of Counsel), 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 definitive Securities of the same series without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the
26
portion of such global Security to be exchanged which (unless the Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 301) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that no such
-------- -------
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series is to be redeemed and ending
on the relevant Redemption Date; and provided, further, that (unless otherwise
-------- -------
specified as contemplated by Section 301) no Bearer Security delivered in
exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to such
depository or the U.S. Depository, as the case may he, or such other depository
or U.S. Depository referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange for
any portion of a global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date 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 interest or
Defaulted Interest, as the case may be, interest will 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 will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security is
payable in accordance with the provisions of this Indenture.
All Securities and the Guarantees endorsed thereon issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantor, respectively, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
and the Guarantees endorsed thereon 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 for such series of Security presented) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and such Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
27
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, 1006 or 1207 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any 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 that series under Section 1203 and ending at the close of business on the day
of such selection, or (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, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to Securities of a series, that such
a Bearer Security may be exchanged for a Registered Security of that series,
provided that such Registered Security shall be immediately surrendered for
--------
redemption with written instruction for payment consistent with the provisions
of this Indenture.
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
(having a Guarantee duly endorsed thereon) of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there be delivered to the Company, the Guarantor 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, the Guarantor 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 exchange for or
in lieu of any such mutilated, 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 (having a
Guarantee duly endorsed thereon) of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously
28
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
--------
however, that payment of principal of (and premium, if any) and any interest on
-------
Bearer Securities shall, except as otherwise provided in Section 1102, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any 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, their coupons, if any, and Guarantees duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights
------------------------------------
Preserved.
---------
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided in
such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest. In case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such series) on
any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such
29
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange of such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date for
such Registered Security (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company or the Guarantor, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The Company or the Guarantor 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 or the Guarantor 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 or
the Guarantor, as the case may be, shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided and the
Company shall provide or cause to be provided to the Trustee a current list
of the names and addresses of the Holders of the Registered Securities.
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 or the Guarantor,
as the case may be, of such Special Record Date and, in the name and at the
expense of the Company or the Guarantor, as the case may be, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address 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 or the Guarantor, as the case may be, cause a similar notice to be
published at least once in
30
an Authorized Newspaper, customarily published in the English language on
each Business Day and of general circulation in the Borough of Manhattan,
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 Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company or the Guarantor may make payment of any Defaulted
Interest 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 or the Guarantor to the Trustee of the proposed payment
pursuant to this Clause, such 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.
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 Guarantor, the Trustee and any agent of the Company
or the Guarantor or the Trustee may
31
treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and 307)
interest on and Additional Amounts with respect to, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Guarantor, the Trustee nor any agent of
the Company or the Guarantor or the Trustee shall be affected by notice to the
contrary.
The Company, the Guarantor, the Trustee and any agent of the Company or the
Guarantor or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company or
the Guarantor or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee or the
Security Registrar, be delivered to the Trustee or the Security Registrar, and
any such Securities and coupons and Securities and coupons surrendered directly
to the Trustee or the Security Registrar for any such purpose shall be promptly
cancelled by the Trustee or the Security Registrar, as the case may be. The
Company or the Guarantor may at any time deliver to the Trustee or the Security
Registrar for cancellation any Securities previously authenticated and delivered
hereunder which the Company or the Guarantor may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee or the Security Registrar, as the case may be. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee or the Security Registrar shall be
destroyed by the Trustee or the Security Registrar, as the case may be, unless
by a Company Order or a Guarantor Order the Company or the Guarantor, as the
case may be, directs their return to it.
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 of twelve 30-day months.
32
ARTICLE FOUR
GUARANTEES OF SECURITIES
Section 401. Unconditional Guarantee.
-----------------------
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of and premium, if any, and any interest on or Additional
Amounts in respect of such Security and the due and punctual payment of the
sinking fund payments, if any, provided for pursuant to the terms of such
Security, when and as the same shall become due and payable, whether at
maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure
of the Company punctually to pay any such principal, premium, interest,
Additional Amounts or sinking fund payment, the Guarantor hereby agrees to cause
any such payment to be made punctually when as the same shall become due and
payable, whether at maturity, upon acceleration, redemption, repayment or
otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or this Indenture, any failure to enforce the
provisions of any such Security or this Indenture, or any waiver, modification,
consent or indulgence granted to the Company with respect thereto by the Holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that the Guarantees will not be
discharged except by payment in full of the principal of and premium, if any,
and interest on, and any Additional Amounts and sinking fund payments required
with respect to, the Securities and the complete performance of all other
obligations contained in the Securities.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of the Guarantees; provided, however,
-------- -------
that the Guarantor shall not be entitled to enforce, or to receive any
33
payments arising out of or based upon, such right of subrogation until the
principal of and premium, if any, and interest on, and any Additional Amounts
and sinking fund payments required with respect to, all Securities of the same
series shall have been paid in full.
Section 402. Execution, Authentication and Delivery. To evidence the
--------------------------------------
Guarantees to the Holders specified in Section 401, the Guarantor hereby agrees
to execute a Guarantee on each Security authenticated and delivered by the
Trustee. The Guarantees shall be executed on behalf of the Guarantor by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon, and attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officer of the Guarantor shall bind the Guarantor
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Guarantees or did not
hold such offices at the date of such Guarantees. The delivery by the Trustee
of a Security with such a Guarantee endorsed thereon shall, after the
authentication of such Security hereunder, constitute due delivery of such
Guarantee on behalf of the Guarantor.
No Guarantee endorsed on any Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on the Security on which such Guarantee is endorsed a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature.
Section 403. Subordination.
-------------
The rights and claims of the Trustee and the Holders of Securities against
the Guarantor under Section 401 will be subordinated to the extent provided in
Section 1602.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 501. Satisfaction and Discharge of Indenture.
---------------------------------------
Upon the direction of the Company by a Company Order or of the Guarantor by
a Guarantor Order, this Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein
34
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1104), and the Trustee, on demand of and at the expense of the
Company and the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all
coupons appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Xxxxxxx 000, (xxx) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1207, and (iv) Securities and
coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1103) have
been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below, any
such coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company and the Guarantor,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee, or has made such
other arrangements as are satisfactory to the Trustee, as trust funds in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
35
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor; and
(3) the Company and the Guarantor have delivered to the Trustee 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 have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 707
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
502 and the last paragraph of Section 1103 shall survive.
Section 502. Application of Trust Money.
---------------------------
Subject to the provisions of the last paragraph of Section 1103, all money
deposited with the Trustee or in such other manner as is satisfactory to the
Trustee, pursuant to Section 501 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest and Additional Amounts for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE SIX
REMEDIES
Section 601. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or be effected by operation
of law pursuant to
36
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Guarantor or any Major
Constituent Bank in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, adjudging it
bankrupt or insolvent or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company, the Guarantor or any
Major Constituent Bank, as the case may be, or for any substantial part of its
property, 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
(2) The Company, the Guarantor or any Major Constituent Bank shall commence
a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in any involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or similar official) of the Company, the
Guarantor or any Major Constituent Bank, as the case may be, or for any
substantial part of its property.
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 in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 602. Acceleration of Maturity; Rescission and
----------------------------------------
Annulment.
---------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal of all the Securities of that series, or such lesser
amount as may be provided for in the Securities of that series, to be due and
payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a
37
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) 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
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel as provided in Section 707 hereof; and
(2) all Events of Default with respect to Securities of that series
have been cured or waived as provided in Section 613.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 603. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee.
----------------------
The Company and the Guarantor covenant that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity, the Company or the Guarantor will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities
38
and coupons, the whole amount then due and payable on such Securities and
coupons for principal (and premium, if any) and interest and Additional
Amounts, if any, with interest upon the overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest or any Additional
Amounts, at the rate or rates borne by or provided for in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company or the Guarantor 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, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or the Guarantor or
any other obligor upon such Securities, wherever situated.
If a default (as defined in Section 613) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such judicial proceedings as the Trustee shall deem
appropriate to protect and enforce any such rights, whether for the specific
performance of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or to enforce any other remedy at law or in
equity.
Section 604. 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, the Guarantor or any other obligor
upon the Securities or the property of the Company, the Guarantor or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company or the Guarantor for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount or such lesser
amount as may be provided for in the Securities of that series, of
principal (and premium, if any) and interest and any Additional Amounts
owing and unpaid in
39
respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any 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 707.
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 605. 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 or the Guarantees 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 or judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
Section 606. 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 (and premium,
if any), interest or any Additional Amounts, upon presentation of the Securities
or
40
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
707;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and
any Additional Amounts payable 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 premium, if any), interest
and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 607. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities, to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
41
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
Section 608. Unconditional Right of Holders to
---------------------------------
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on and any Additional Amounts in respect of such
Security or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 609. 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 Guarantor, the Trustee and the Holders of Securities and
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 the Holders shall continue as though
no such proceeding had been instituted.
Section 610. 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.
42
Section 611. 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 default (as defined in
Section 613 hereof) under this Indenture shall impair any such right or remedy
or constitute a waiver of any such 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 612. Control by Holders of Securities.
--------------------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of other
Holders of Securities of such series.
Section 613. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default (as
defined below) hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Ten 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 default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall
43
extend to any subsequent or other default or impair any right consequent
thereon. For purposes of this Indenture the term "default" for a series of
Securities shall mean (a) any Event of Default; (b) any default in the payment
of any interest upon or any Additional Amounts payable in respect of any
Security of such series; (c) any default in the payment of the principal of (and
premium, if any, on) any Security of such Series when it becomes due and payable
at Maturity; (d) any default in the deposit of any sinking fund payment when and
as due by the terms of the Securities of such series; or (e) any default in the
performance, or breach, of any covenant or warranty of the Company or the
Guarantor in this Indenture or the Securities or the Guarantees after notice in
writing by the Trustee to the Company and the Guarantor specifying such default
or breach.
Section 614. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit, other than the Trustee, 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,
including the Trustee, 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, the Guarantor,
the Trustee or by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of (and premium, if any) or interest on or any
Additional Amounts in respect of any Security or the payment of any coupon on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date) or interest on any overdue
principal of any Security.
Section 615. Waiver of Stay or Extension Laws.
--------------------------------
The Company and the Guarantor covenant (to the extent that they may
lawfully do so) that they 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 and
the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law and covenant that they will not
hinder, delay or impede
44
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 SEVEN
THE TRUSTEE
Section 701. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of a default under this Indenture,
(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 a default under this Indenture 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 willful misconduct, except that
------
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a
45
majority in principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 702. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default with respect to the
Securities of any series, the Trustee shall transmit notice of such default
hereunder known to the Trustee, by mail to all Holders of Securities of such
series entitled to receive reports pursuant to Section 803(c), 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 (and premium, if any) or
interest on, or any Additional Amounts with respect to, 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.
Section 703. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 701:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, or other paper or document reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
46
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order or Guarantor Request or Guarantor 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 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 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 and the Guarantor, personally or
by agent or attorney; and
(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.
47
Section 704. Not Responsible for Recitals or
-------------------------------
Issuance of Securities and Guarantees.
-------------------------------------
The recitals contained herein and in the Securities and Guarantees, except
the Trustee's certificate of authentication, and in any coupons shall be taken
as the statements of the Company or the Guarantor, as the case may be, and the
Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons or the Guarantees.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company or by the Guarantor of Securities or the proceeds
thereof.
Section 705. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 708 and 713, may otherwise deal with the Company and
the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 706. 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 or the Guarantor.
Section 707. Compensation and Reimbursement.
------------------------------
(a) The Company and the Guarantor agree to pay to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
(b) Except as otherwise expressly provided herein, the Company and the
Guarantor agree 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),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith.
48
(c) The Company and the Guarantor agree to indemnify the Trustee and its
agents for, and to hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.
The Trustee shall give the Company and the Guarantor written notice of any
pending or threatened litigation of any such claim or liability promptly after
the Trustee shall have knowledge thereof, but failure by the Trustee to give
such notice shall not affect the Trustee's right or the obligations of the
Company and the Guarantor to indemnity hereunder.
While maintaining absolute control over its own defense, the Trustee shall
cooperate and consult with the Company and the Guarantor in preparing such
defense. The Trustee may have separate counsel and the Company and the
Guarantor agree to pay the reasonable fees and expenses of such counsel.
Notwithstanding anything to the contrary in this Section 707(c), neither the
Company nor the Guarantor shall be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Company and the
Guarantor, which consent shall not be unreasonably withheld.
(d) As security for the performance of the obligations of the Company and
the Guarantor under this Section, the Trustee shall have a lien prior to the
Securities of any series 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
premium, if any) or interest on a particular series Securities.
(e) When the Trustee incurs expenses or renders services after an Event of
Default occurs, the expenses and compensation for the services of the Trustee
are intended to constitute expenses of administration under any bankruptcy law
or any similar federal or state law for the relief of debtors.
Section 708. Disqualifications; Conflicting Interests.
----------------------------------------
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to
49
the Securities of any series, the Trustee shall, within ten days after the
expiration of such 90-day period, transmit, in the manner and to the extent
provided in Section 803(c) to all Holders of Securities of that series, notice
of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series, if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company or the
Guarantor are outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of Securities
issued under this Indenture, provided that there shall be excluded from the
--------
operation of this paragraph (A) this Indenture with respect to the
Securities of any series other than that series, and (B) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company or the Guarantor are
outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
(ii) the Company or the Guarantor shall have sustained the burden
of proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
the Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the
50
Securities of that series and such other series under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company or the
Guarantor;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or the Guarantor or an underwriter for the Company or the
Guarantor;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company or the Guarantor, or of an underwriter (other than the Trustee
itself) for the Company or the Guarantor who is currently engaged in the
business of underwriting, except that (i) one individual may be a director
or an executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Company or the Guarantor but may not be
at the same time an executive officer of both the Trustee and the Company
or the Guarantor; (ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company or the Guarantor; and (iii) the Trustee may be designated by
the Company or the Guarantor or by any underwriter for the Company or the
Guarantor to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph (1) of this
Subsection, to act as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned by the Company or the Guarantor or by any director,
partner, or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned by an underwriter for the Company or the Guarantor or by
any director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company or the Guarantor not
including the Securities issued under this Indenture and securities
51
issued under any other indenture under which the Trustee is also trustee,
or (ii) 10% or more of any class of security of an underwriter for the
Company or the Guarantor;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company or the Guarantor;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company or the Guarantor; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator, or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company or the Guarantor
fails to make payment in full of the principal of (or premium, if any) or
interest on any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection.
52
The specification of percentages in paragraphs (5) to (9), inclusive, of
this Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent, or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company or
the Guarantor, means every person who, within three years prior to the time
as of which the determination is made, has purchased from the Company or
the Guarantor with a view to, or has offered or sold for the Company or the
Guarantor in connection with, the distribution of any security of the
Company or the Guarantor outstanding at such time, or has participated or
has had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock
53
company, a trust, an unincorporated organization, or a government or
political subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The terms "Company" and "Guarantor" mean any obligor upon the
Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company, the Guarantor or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means such
amount of the outstanding voting securities of such person as entitles the
holder or holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding voting securities
of such person are entitled to cast in the direction or management of the
affairs of such person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
54
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
-------- -------
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
-------- -------
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series as different classes; and provided, further, that,
-------- -------
in the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
Section 709. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of
55
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 710. 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 711.
(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 and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 711 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 such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 708(a) after written
request therefor by the Company or the Guarantor 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 709 and shall
fail to resign after written request therefor by the Company or the
Guarantor, 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 or the Guarantor, by Board Resolutions,
may remove the Trustee with respect to all Securities, or (ii) subject to
Section 614, any Holder of a Security who has been a bona fide Holder of a
Security of any
56
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities of such series and the appointment
of a successor Trustee or Trustees.
(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 or the Guarantor, by Board
Resolutions, 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 711. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company, the Guarantor,
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 711, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company or the Guarantor. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Guarantor or the Holders of Securities and accepted appointment in the
manner required by Section 711, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of-Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
57
Section 711. 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, the Guarantor and 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 of the retiring Trustee; but, on the
request of the Company, the Guarantor and/or the successor Trustee, such
retiring Trustee shall, upon payment of its charges as provided in Section 707,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, 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
cotrustees of the same trust, that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further
58
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, the Guarantor 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 and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 712. 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 713. Preferential Collection of Claims Against
-----------------------------------------
Company and Guarantor.
---------------------
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or the Guarantor within four months prior to a default, as defined in
Subsection
59
(c) of this Section, or subsequent to such a default, then, unless, and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and coupons and the holders of other indenture securities (as defined
in Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four-month period and valid as against
the Company or the Guarantor and their other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company or the Guarantor upon
the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
the Guarantor and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company and the Guarantor) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third Person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against the
Company or the Guarantor in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Code or applicable
State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four-
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
60
shall sustain the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a default, as
defined in Subsection (c) of this Section, would occur within four months;
or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of Securities and the holders of other indenture securities
in such manner that the Trustee, the Holders of Securities and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company or the
Guarantor in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company or the
Guarantor of the funds and property in such special account and before crediting
to the respective claims of the Trustee and the Holders of Securities and the
holders of other indenture securities dividends on claims filed against the
Company or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or
61
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee and the Holders of Securities and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders of Securities and
the holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to appraise the
value of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four-month period: and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders of Securities at the time and in
the manner provided in this Indenture;
62
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
which is organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, and which is directly or indirectly a creditor of
the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section;
(c) For the purpose of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company or the Guarantor is an obligor outstanding under any other
indenture (i) under which indenture and as to which securities the Trustee
is also trustee, (ii) which contains provisions substantially similar to
the provisions of this Section, and (iii) under which a default exists at
the time of the apportionment of the funds and property held in such
special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or the Guarantor for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to,
possession of, or lien upon, the goods, wares or merchandise or the
receivables or proceeds arising
63
from the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company or the Guarantor arising from the making, drawing, negotiating or
incurring of the draft, xxxx of exchange, acceptance or obligation; and
(5) the terms "Company" and "Guarantor" mean any obligor upon the
Securities.
Section 714. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
or exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and the
Guarantor and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
64
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company and the
Guarantor. 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 the Guarantor and shall (i) mail written notice of such appointment
by first-class mail, postage prepaid, to all Holders of Registered Securities,
if any, of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are 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. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company and the Guarantor agree to pay each Authenticating Agent from
time to time reasonable compensation for its services under this Section. If
the Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 707.
The provisions of Sections 308, 704 and 705 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
65
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By_______________________
as Authenticating Agent
By_______________________
Authorized Signatory
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) by the Company, shall appoint in accordance with this Section
714 an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 801. Company and Guarantor to Furnish Trustee Names
----------------------------------------------
and Addresses of Holders.
------------------------
The Company and Guarantor will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not later than 15 days after the Regular Record Date for
interest for each series of Securities, 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 such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company or the Guarantor 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,
66
provided, however, that so long as the Trustee is the Security Registrar no
-------- -------
such list shall be required to be furnished.
Section 802. Preservation of Information;
----------------------------
Communications to Holders.
-------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee for each series as provided in
Section 801, (ii) received by the Trustee for each series in the capacity of
Security Registrar if the Trustee is then acting in such capacity and (iii)
filed with it within the two preceding years pursuant to Section 803(c)(2). The
Trustee may destroy any list furnished to it as provided in Section 801 upon
receipt of a new list so furnished, and destroy not earlier than two years after
filing, any information filed with it pursuant to Section 803(c)(2).
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under the Securities of such series or the
Guarantees and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 802(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 802(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such series whose name and address appears
in the information preserved at the time by the Trustee in accordance with
Section 802(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of
67
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders of
Securities of such series with reasonable promptness after the entry of such
order and the renewal of such tender.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 802(b), 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 802(b).
Section 803. Reports by Trustee.
------------------
(a) Within 60 days after September 15 of each year commencing with the year
following the first issuance of Securities pursuant to Section 301, the Trustee
shall transmit by mail to all Holders of Securities, as their names and
addresses appear in the Security Register, a brief report dated as of such
September 15 with respect to:
(1) its eligibility under Section 709 and its qualifications under
Section 708, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities or the Guarantees relating thereto, on any
property or funds held or collected
68
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company or the Guarantor (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 713(b)(2),(3),(4)
or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities or the Guarantees relating thereto,
except action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 702.
(b) The Trustee shall transmit by mail to all Holders of Securities, as
provided in Subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities or the Guarantees
relating thereto, on property or funds collected by it as Trustee, and which it
has not previously reported pursuant to this subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
69
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 802(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company and
the Guarantor. The Company or the Guarantor will notify the Trustee when any
Securities are listed on any stock exchange.
Section 804. Reports by Company and Guarantor.
--------------------------------
The Company and the Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or the
Guarantor 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 or the
Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company or the Guarantor 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 in respect of
a security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company and the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
70
(3) transmit within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 803(c) with respect to
reports pursuant to Section 803(a), such summaries of any information,
documents and reports required to be filed by the Company or the Guarantor
pursuant to paragraphs (l) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE NINE
CONSOLIDATION, MERGER AND SALES
Section 901. Company May Consolidate, Etc., Only on Certain
----------------------------------------------
Terms.
-----
Nothing contained in this Indenture or in any of the Securities or
Guarantees shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company); provided, however, that:
-------- -------
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed and delivered by the successor corporation
and the Guarantor to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on and Additional Amounts in respect of all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Guarantor, Company or a
Subsidiary as a result of such transaction as having been incurred by the
71
Guarantor, the Company or such Subsidiary at the time of such transaction,
no default, and no event which, after notice or lapse of time or both,
would become a default, shall have happened and be continuing;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and
(4) The Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the Guarantees
remain in full force and effect.
Section 902. Successor Corporation Substituted for Company.
---------------------------------------------
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 901, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 903. Guarantor May Consolidate, Etc., Only On
----------------------------------------
Certain Terms.
-------------
Nothing contained in this Indenture or in any of the Securities or
Guarantees shall prevent any consolidation or merger of the Guarantor with or
into any other corporation or corporations (whether or not affiliated with the
Guarantor), or successive consolidations or mergers in which the Guarantor or
its successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the property of the Guarantor as an entirety or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Guarantor); provided, however, that:
-------- -------
(1) in case the Guarantor shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the
72
properties and assets of the Guarantor substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed and delivered by the
Guarantor and the Company to the Trustee, in form satisfactory to the
Trustee, the Guarantees endorsed on the Securities and the performance of
every covenant of this Indenture on the part of the Guarantor to be
performed or observed:
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Guarantor or a
Subsidiary as a result of such transaction as having been incurred by the
Guarantor or such Subsidiary at the time of such transaction, no default,
and no event which, after notice of lapse of time or both, would become a
default, shall have happened and be continuing; and
(3) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 904. Successor Corporation Substituted for
-------------------------------------
Guarantor.
---------
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Guarantor substantially as an entirety to any
Person in accordance with Section 903, the successor corporation formed by such
consolidation or into which the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Indenture with the
same effect as if such successor corporation had been named as the Guarantor
herein, and thereafter, except in the case of a lease to another Person, the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Guarantees.
Section 905. Assumption by Guarantor.
-----------------------
The Guarantor, or a Subsidiary thereof, may directly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and
73
interest on and Additional Amounts in respect of all the Securities and the
performance of every covenant of this Indenture on the part of the Company to be
performed or observed. Upon any such assumption, the Guarantor or such
Subsidiary shall succeed to, and be substituted for and may exercise every right
and power of, the Company under this Indenture with the same effect as if
Guarantor or such Subsidiary had been named as the Company herein and the
Company shall be released from its liability as obligor on the Securities. No
such assumption shall be permitted unless the Guarantor has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such assumption and supplemental indenture comply with this Article, and that
all conditions precedent herein provided for relating to such transaction have
been complied with and that, in the event of assumption by a Subsidiary, the
Guarantees remain in full force and effect.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures without Consent
---------------------------------------
of Holders.
----------
Without the consent of any Holders of Securities or coupons, the Company
and the Guarantor, when authorized by Board Resolutions, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities or the Guarantees, as
the case may be; or
(2) to add to the covenants of the Company or the Guarantor 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 the Guarantor; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit
74
Registered Securities to be exchanged for Bearer Securities or to permit
the issuance of Securities in uncertificated form, provided any such action
--------
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(4) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(5) 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 711(b); or
(6) 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 which shall not be inconsistent with
the provisions of this Indenture and which shall not adversely affect the
interest of the Holders of Securities of any series or any related coupons
in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default; or
(9) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal
statute hereafter enacted and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act; or
(10) to effect the assumption by the Guarantor or a Subsidiary thereof
pursuant to Section 905.
The Trustee shall be entitled to receive an Opinion of Counsel in
connection with any supplemental indenture purporting to comply with the
provisions of this Section 1001 which states that no consent is necessary under
Article Ten of this Indenture in order to enter into such supplemental
indenture.
75
Section 1002. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by
Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental Indenture
-------- -------
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any Additional Amounts payable in respect
thereof, or any premium payable upon the redemption thereof, or change the
obligation of the Company and the Guarantor to pay Additional Amounts
pursuant to Section 1104 (except as contemplated by Section 901(1) and
permitted by Section 1001(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
602, or change the Place of Payment, coin or currency in which any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify any of the provisions of this Section, or Section 613, or
Section 107, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
76
(4) modify or affect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or premium, if any, interest or
sinking fund requirements, if any, on, or Additional Amounts in respect of,
the Securities, or
(5) modify the provisions of this Indenture with respect to the
subordination of the Securities or the Guarantees in a manner adverse to
the Holders.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 1003. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 701) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 1004. 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 1005. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
77
Section 1006. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 1007. Subordination Unimpaired.
------------------------
No supplemental indenture entered into under this Article shall modify,
directly or indirectly, the provisions of Article Sixteen or the definition of
Senior Company Indebtedness or Senior Guarantor Indebtedness, respectively, in
Section 101 in any manner that might alter or impair the subordination of the
Securities with respect to Senior Company Indebtedness then outstanding or the
subordination of the Guarantees with respect to Senior Guarantor Indebtedness
then outstanding, unless each holder of such Senior Company Indebtedness or
Senior Guarantor Indebtedness, as the case may be, has consented thereto in
writing.
ARTICLE ELEVEN
COVENANTS
Section 1101. Payment of Principal, Premium, if any,
--------------------------------------
and Interest.
------------
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), 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 Maturity, other than Additional Amounts, if any, payable as provided in
Section 1104 in respect of principal of (or premium, if any, on) such a
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
78
Section 1102. Maintenance of Office or Agency.
-------------------------------
The Company or the Guarantor will 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 where notices and demands to or upon the Company or
the Guarantor in respect of the Securities of that series and the Guarantees
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company or the Guarantor will maintain,
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for such Series which is located outside the United States
where Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of such series pursuant to Section 1104); 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 or the Guarantor will maintain a Paying Agent 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 or the Guarantor will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company or the Guarantor 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 of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1104) at the place
specified for the purpose pursuant to Section 301, and the Company and the
Guarantor each hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
-------- -------
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the Corporate Trust Office or any
79
office or agency designated by the Company in the Borough of Manhattan, The City
of New York if (but only if) payment of the full amount of such principal,
premium, interest or Additional Amounts at all offices outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company or the Guarantor may also from time to time designate one or
more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company or the Guarantor of their
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company or the Guarantor will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless
otherwise set forth in a Board Resolution or indenture supplemental hereto with
respect to a series of Securities, the Company and the Guarantor each hereby
designates as the Place of Payment for each series the City of New York, and
initially appoints an office or agency of the Company or the Guarantor for such
purpose. Pursuant to Section 3.01(8) of this Indenture, the Company or the
Guarantor may subsequently appoint a place or places in the Borough of
Manhattan, The City of New York, where such Securities may be payable.
Section 1103. Money for Securities Payments to Be Held
----------------------------------------
in Trust.
--------
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any), or interest on, any Securities of that series, deposit with
any Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
80
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order or Guarantor 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 terms as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, 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 premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request (or if deposited by the Guarantor, paid to the
Guarantor on Guarantor Request), 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 and the Guarantor for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
--------
however, that the Trustee or such Paying Agent, before being required to make
-------
any such repayment, may at the expense of the
81
Company cause to be published once, in an Authorized Newspaper in each Place of
Payment or to be mailed to Holders of Registered Securities, 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 nor shall it be later than two years after such principal (and premium,
if any) or interest has become due and payable, any unclaimed balance of such
money then remaining will be repaid to the Company or the Guarantor, as the case
may be.
Section 1104. Additional Amounts.
------------------
If the Securities of a series provide for the payment of Additional
Amounts, the Company and the Guarantor agree to pay to the Holder of any
Security of any such series or any coupon appertaining thereto Additional
Amounts as provided therein. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any) or interest
on, or in respect of, any Security of any series or any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company or the Guarantor, as the case may be, will furnish the Trustee and
the principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or the related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company and the Guarantor agree to pay to the Trustee or such
Paying Agent the Additional Amounts required by
82
this Section. The Company and the Guarantor each covenant 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 1105. Company Statement as to Compliance;
------------------------------------
Notice of Certain Defaults.
--------------------------
(a) The Company will 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 Chairman of the Board, a Vice Chairman, the President or a Vice
President and by the Treasurer or an Assistant Treasurer of the Company,
stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all of its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to him and the
nature and status thereof, and (b) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, a default
or an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(b) The Company will deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which constitutes, or which
after notice or lapse of time or both would become, a default or an Event of
Default.
Section 1106. Guarantor Statement as to Compliance;
-------------------------------------
Notice of Certain Defaults.
--------------------------
The Guarantor will 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 Chairman of the Board, a Vice Chairman, the President or a Vice
President and by the Treasurer or an Assistant Treasurer of the Guarantor,
stating, as to each signer thereof, that
(1) a review of the activities of the Guarantor during such year and
of performance under this Indenture has been made under his supervision,
and
83
(2) to the best of his knowledge, based on such review, (a) the
Guarantor has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, a default or an
Event of Default, or, if such an event has occurred and is continuing,
specifying each such event known to him and the nature and status thereof
.
(b) The Guarantor will deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which constitutes, or which
after notice or lapse of time or both would become, a default or an Event of
Default.
Section 1107. Reserved.
--------
Section 1108. Limitation on Creation of Liens.
-------------------------------
So long as any of the Securities shall be outstanding, the Guarantor will
not, nor will it permit any Subsidiary to, create, assume, incur or suffer to be
created, assumed or incurred or to exist any pledge, encumbrance or lien, as a
security for indebtedness for borrowed money, upon any shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of the Company or a Major Constituent Bank, directly or
indirectly, without making effective provision whereby the Securities of all
series shall be equally and ratably secured with any and all such indebtedness
if, treating such pledge, encumbrance or lien as a transfer of the shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock subject thereto to the secured party and to the
issuance of the maximum number of shares of Voting Stock of the Company or such
Major Constituent Bank issuable upon the exercise of all such convertible
securities, options, warrants or rights, the Company or such Major Constituent
Bank would not continue to be a Controlled Subsidiary.
Section 1109. Corporate Existence.
-------------------
Subject to Article Nine, the Company and the Guarantor will do or cause to
be done all things necessary to preserve and keep in full force and effect their
respective corporate existences and that of each Major
Constituent Bank and their respective rights (charter and statutory) and
franchises and those of each such Major Constituent Bank; provided, however,
-------- -------
that neither the Company, the Guarantor nor any Major Constituent Bank shall be
required to preserve any such right or franchise if the Company, the Guarantor
or
84
such Major Constituent Bank, as the case may be, shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1110. Waiver of Certain Covenants.
---------------------------
The Company or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1108, and 1109 with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the Guarantor and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
Section 1201. Applicability of Article.
------------------------
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and this Article.
Section 1202. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series, with the same issue date, interest rate and Stated
Maturity, 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.
Section 1203. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series with the same issue date,
interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be
85
selected not more than 60 days prior to the Redemption Date by the Trustee from
the Outstanding Securities of such series 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 of the principal amount of
Registered Securities of such series: provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for a
Security of that series established pursuant to Section 302.
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 Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Section 1204. 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 the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities 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 Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) 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 Securities to be redeemed.
(4) in case any Registered Security is to be redeemed in part only,
the notice which relates to such Security
86
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,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and, if applicable,
that interest thereon shall cease to accrue on and after said date.
(6) 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
(7) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1205. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1103) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
Section 1206. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, 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
87
thereto maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with 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 1102), and provided, further, that
-------- -------
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the Regular Record Dates according to their terms and the provisions
of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
-------- -------
interest (and any Additional Amounts) represented by coupons shall be payable
only upon presentation and surrender of those coupons at an office or agency
located outside of the United States except as otherwise provided in Section
1102.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1207. 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 1102 (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 Securities of the same series with a Guarantee or
Guarantees endorsed thereon, containing identical terms and provisions, of any
authorized denomination as requested by such
88
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 THIRTEEN
SINKING FUNDS
Section 1301. 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 permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
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 1302. 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 1302. 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 such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) 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
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
--------
series of Securities have not been
89
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities of any series in lieu of cash payments pursuant to this
Section 1302, the principal amount of Securities of such series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 1303. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing 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 and crediting of
Securities of that series pursuant to Section 1302, 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 60 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 1203 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 1204. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1206 and 1207.
90
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1401. Applicability of Article.
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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
cancelled. Notwithstanding anything to the contrary contained in this Article
Fourteen, 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 FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May
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Be Called.
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A meeting of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series
Section 1502. Call, Notice and Place of Meetings.
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(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, in London, as
the Trustee shall determine. Notice of every meeting of Holders of
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Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company or the Guarantor, pursuant to Board
Resolutions, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, 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, the Guarantor or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, 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 1503. Persons Entitled to Vote at Meetings.
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To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
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The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
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to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3% in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series,
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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 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 1002, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 1002, any
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resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
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as limited by the proviso to Section 1002, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Section 1505. Determination of Voting Rights; Conduct
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and Adjournment of Meetings.
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(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series
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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 1502(b), in which
case the Company, the Guarantor or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
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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 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
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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
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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 1502 and, if applicable, Section 1504.
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 the Guarantor, 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 SIXTEEN
SUBORDINATION
Section 1601. Securities Subordinated to Senior Company Indebtedness.
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The Company covenants and agrees, and each Holder of Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium, if
any) and interest on and any Additional Amounts payable in respect thereof 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 Senior Company
Indebtedness.
Anything in this Indenture or in the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, to the extent and in the manner
hereinafter set forth, to all Senior Company Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, arrangement or other similar
proceedings in connection therewith, relative to the Company or to its property,
and in the event of any proceedings for voluntary liquidation, dissolution or
other winding-up of the Company, whether or not involving insolvency or
bankruptcy, then the holders of Senior Company Indebtedness shall
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be entitled to receive payment in full of all principal, premium and interest on
all Senior Company Indebtedness before the Holders of the Securities are
entitled to receive any payment on account of principal or interest upon the
Securities, and to that end (but subject to the power of a court of competent
jurisdiction to make other equitable provisions reflecting the rights conferred
in the Securities upon Senior Company Indebtedness and the Holders thereof with
respect to the subordinated indebtedness represented by the Securities and the
Holders hereof by a lawful plan of reorganization under applicable bankruptcy
law) the holders of Senior Company Indebtedness shall be entitled to receive for
application in payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which may be payable or
deliverable in any such proceedings in respect of the Securities after giving
effect to any concurrent payment or distribution in respect of such Senior
Company Indebtedness, except securities which are subordinate and junior in
right of payment to the payment of all Senior Company Indebtedness then
outstanding;
(b) In the event that any Security of any series is declared or otherwise
becomes due and payable before its expressed maturity because of the occurrence
of an Event of Default hereunder (under circumstances when the provisions of the
foregoing clause (a) or the following clause (c) shall not be applicable), the
holders of Senior Company Indebtedness outstanding at the time such Security 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 602, be entitled to receive payment in full of all principal
of, and premium and interest on, all such Senior Company Indebtedness before the
Holders of the Securities of such series are entitled to receive any payment on
account of principal of or interest on the Securities of such series; provided,
that, nothing herein shall prevent the holders of Securities from seeking any
remedy allowed at law or at equity so long as any judgment or decree obtained
thereby makes provision for enforcing this clause; and
(c) In the event that any default shall occur and be continuing with
respect to any Senior Company Indebtedness permitting the holders of such Senior
Company Indebtedness to accelerate the maturity thereof, if either (a) notice of
such default, in writing, shall have been given to the Company and to the
Trustee, provided that judicial proceedings shall be commenced in respect of
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such default within 180 days in the case of a default in payment of principal or
interest and within 90 days in the case of any other default after the giving of
such notice, and provided further that only one such notice shall be given
pursuant to this Section 1601(c) in any twelve months period, or (b) judicial
proceedings shall be pending in respect
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of such default, the Holders of the Securities and the Trustee for their benefit
shall not be entitled to receive any payment on account of principal or interest
thereon (including any such payment which would cause such default) unless
payment in full of all principal of, and premium and interest on, such Senior
Company Indebtedness shall have been made or provided for. The Trustee,
forthwith upon receipt of any notice received by it pursuant to this Section
1601(c), shall, as soon as practicable, send a notice thereof to each Holder of
Securities at the time outstanding as the names and addresses of such Holders
appear on the registry books of the Company.
In case despite the foregoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Securities
or to the Trustee for their benefit before all Senior Company Indebtedness shall
have been paid in full, such payment or distribution shall be held in trust for
and so paid and delivered to the holders of Senior Company Indebtedness (or
their duly authorized representatives) until all Senior Company Indebtedness
shall have been paid in full.
The Company shall give written notice to the Trustee within five days after
the occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the Company within the
meaning of this Section 1601. Upon any payment or distribution of assets of the
Company referred to in this Article Sixteen, the Trustee, subject to the
provisions of Section 701, and the Holders of the Securities shall be, entitled
to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors or other liquidating agent making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Company 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 Sixteen.
In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Company Indebtedness to participate in any payment or distribution
pursuant to this Section 1601, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Company Indebtedness held by such person, as to the extent to which such
person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the rights of such person under this Section 1601, 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 1602. Guarantees Subordinated to Senior
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Guarantor Indebtedness.
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The Guarantor covenants and agrees, and each Holder of Guarantees endorsed
on the Securities, by his acceptance thereof, likewise covenants and agrees,
that the indebtedness evidenced by the Guarantees and the payment of the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities under the Guarantees 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 Senior Guarantor Indebtedness.
Anything in this Indenture or in the Securities and related Guarantees of
any series to the contrary notwithstanding, the indebtedness evidenced by the
Guarantees endorsed on the Securities shall be subordinate and junior in right
of payment, to the extent and in the manner hereinafter set forth, to all Senior
Guarantor Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, arrangement or other similar
proceedings in connection therewith, relative to the Guarantor or to its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding-up of the Guarantor, whether or not involving
insolvency or bankruptcy, then the holders of Senior Guarantor Indebtedness
shall be entitled to receive payment in full of all principal, premium and
interest on all Senior Guarantor Indebtedness before the Holders of the
Guarantees endorsed on the Securities are entitled to receive any payment on
account of principal or interest upon the Securities, and to that end (but
subject to the power of a court of competent jurisdiction to make other
equitable provisions reflecting the rights conferred in the Guarantees upon
Senior Guarantor Indebtedness and the Holders thereof with respect to the
subordinated indebtedness represented by the Guarantees and the Holders thereof
by a lawful plan of reorganization under applicable bankruptcy law) the holders
of Senior Guarantor Indebtedness shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or character, whether in
cash or property or securities, which may be payable or deliverable in any such
proceedings in respect of the Guarantees after giving effect to any concurrent
payment or distribution in respect of such Senior Guarantor Indebtedness, except
securities which are subordinate and junior in right of payment to the payment
of all Senior Guarantor Indebtedness then outstanding;
(b) In the event that any Security of any series is declared or otherwise
becomes due and payable before its expressed maturity because of the occurrence
of an Event of Default hereunder (under circumstances when the provisions of the
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foregoing clause (a) or the following clause (c) shall not be applicable), the
holders of Senior Guarantor Indebtedness outstanding at the time such Security
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 602, be entitled to receive payment in full of all principal
of, and premium and interest on, all such Senior Guarantor Indebtedness before
the Holders of Securities of such series are entitled to receive any payment on
account of principal of or interest on the Securities of such series; provided,
that nothing herein shall prevent the Holders of Securities from seeking any
remedy allowed at law or at equity so long as any judgment or decree obtained
thereby makes provision for enforcing this clause: and
(c) In the event that any default shall occur and be continuing with
respect to any Senior Guarantor Indebtedness permitting the holders of such
Senior Guarantor Indebtedness to accelerate the maturity thereof, if either (a)
notice of such default, in writing, shall have been given to the Guarantor and
by the Guarantor to the Trustee hereunder, provided that judicial proceedings
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shall be commenced in respect of such default within 180 days in the case of a
default in payment of principal or interest and within 90 days in the case of
any other default after the giving of such notice, and provided further that
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only one such notice shall be given pursuant to this Section 1602(c) in any
twelve months period, or (b) judicial proceedings shall be pending in respect of
such default, the Holders of the Guarantees endorsed on the Securities and the
Trustee for their benefit shall not be entitled to receive any payment on
account of principal or interest thereon (including any such payment which would
cause such default) under the Guarantees unless payment in full of all principal
of, and premium and interest on, such Senior Guarantor Indebtedness shall have
been made or provided for. The Trustee, forthwith upon receipt of any notice
received by it pursuant to this Section 1602(c) from the Guarantor, shall
promptly send a notice thereof to each Holder of Securities at the time
outstanding as the names and addresses of such Holders appear on the registry
books of the Company.
In case despite the foregoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Guarantees
endorsed on the Securities or to the Trustee for their benefit before all Senior
Guarantor Indebtedness shall have been paid in full, such payment or
distribution shall be held in trust for and so paid and delivered to the holders
of Senior Guarantor Indebtedness (or their duly authorized representatives)
until all Senior Guarantor Indebtedness shall have been paid in full.
The Guarantor shall give written notice to the Trustee within five days
after the occurrence of any insolvency,
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bankruptcy, receivership, liquidation, reorganization, arrangement or similar
proceeding of the Guarantor within the meaning of this Section 1602. Upon any
payment or distribution of assets of the Guarantor referred to in this Article
Sixteen, the Trustee, subject to the provisions of Section 701, and the Holders
of the Guarantees endorsed on the Securities shall be entitled to rely upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other liquidating agent making such payment or distribution,
delivered to the Trustee or to the Holders of Guarantees endorsed on the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Guarantor Indebtedness and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Sixteen.
In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Guarantor Indebtedness to participate in any payment or distribution
pursuant to this Section 1602, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Guarantor Indebtedness held by such person, as to the extent to which
such person is entitled to participate in such payment or distribution, and as
to other facts pertinent to the rights of such person under this Section 1602,
and if such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
Section 1603. Subrogation.
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Subject to the payment in full of all Senior Company Indebtedness to which
the indebtedness evidenced by the Securities is in the circumstances
Subordinated as provided in Section 1601, the Holders of the Securities shall be
subrogated to the rights of the holders of such Senior Company Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to such Senior Company Indebtedness until all amounts owing on the
Securities shall be paid in full, and, as between the Company, its creditors
other than holders of such Senior Company Indebtedness, and the Holders of the
Securities, no such payment or distribution made to the holders of such Senior
Company Indebtedness by virtue of this Article which otherwise would have been
made to the Holders of the Securities shall be deemed to be a payment by the
Company on account of such Senior Company Indebtedness, it being understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand, and the holders of the Senior Company Indebtedness, on the other hand.
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Subject to the payment in full of all Senior Guarantor Indebtedness to
which the indebtedness evidenced by the Guarantees endorsed on the Securities is
in the circumstances subordinated as provided in Section 1602, the Holders of
the Guarantees endorsed on the Securities shall be subrogated to the rights of
the holders of such Senior Guarantor Indebtedness to receive payments or
distributions of cash, property or securities of the Guarantor applicable to
such Senior Guarantor Indebtedness until all amounts owing on the Guarantees
endorsed on the Securities shall be paid in full, and, as between the Guarantor,
its creditors other than holders of such Senior Guarantor Indebtedness, and the
Holders of the Guarantees endorsed on the Securities, no such payment or
distribution made to the holders of such Senior Guarantor Indebtedness by virtue
of this Article which otherwise would have been made to the Holders of the
Guarantees endorsed on the Securities shall be deemed to be a payment by the
Guarantor on account of such Senior Guarantor Indebtedness, it being understood
that the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Guarantees
endorsed on the Securities on the one hand, and the holders of the Senior
Guarantor Indebtedness, on the other hand.
Section 1604. Obligation of Company and Guarantor Unconditional.
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Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in the Securities or the Guarantees is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Company Indebtedness
and the Holders of the Securities, or as between the Guarantor, its creditors
other than the holders of Senior Guarantor Indebtedness and the Holders of the
Guarantees endorsed on the Securities, the obligation of the Company or the
Guarantor, as the case may be, which is absolute and unconditional, to pay to
the Holders of the Securities and the Guarantees endorsed thereon the principal
of (and premium, if any), interest and any Additional Amounts on the Securities
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders of
the Securities and the Guarantees endorsed thereon and creditors of the Company
other than the holders of Senior Company Indebtedness and creditors of the
Guarantor other than holders of Senior Guarantor Indebtedness, as applicable,
nor shall anything herein or therein prevent the Trustee or the Holder of any
Security and the Guarantee endorsed thereon from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Company Indebtedness or Senior Guarantor Indebtedness in respect of cash,
property or securities of the Company or the Guarantor, as the case may be,
received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company or the Guarantor,
as the case may be, referred to in this Article Sixteen, the Trustee and the
Holders of the Securities and the Guarantees endorsed thereon shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company or the Guarantor, as the case may be, is
pending or upon a certificate of the trustee in bankruptcy, receiver, assignee
for the benefit of creditors, liquidating trustee or agent or other person
making any payment or distribution, delivered to the Trustee or to the Holders
of the Securities and the Guarantees endorsed thereon, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Company Indebtedness and other
indebtedness of the Company or the holders of the Senior Guarantor Indebtedness
and other indebtedness of the Guarantor, as the case may be, the amount thereof
or payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article Sixteen.
Section 1605. Payments on Securities Permitted.
--------------------------------
Nothing contained in this Article Sixteen or elsewhere in this Indenture,
or in any of the Securities or the Guarantees, shall affect the obligation of
the Company or the Guarantor, as the case may be, to make, or prevent the
Company or the Guarantor from making payment of the principal of (or premium, if
any), interest or any Additional Amounts on the Securities in accordance with
the provisions hereof and thereof, except as otherwise provided in this Article
Sixteen.
Section 1606. Effectuation of Subordination by Trustee.
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Each Holder of Securities and the Guarantees endorsed thereon, by his
acceptance thereof, authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Sixteen and appoints the Trustee his attorney-in-fact
for any and all such purposes.
Section 1607. Knowledge of Trustee.
--------------------
Notwithstanding the provisions of this Article Sixteen or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee, or the taking of any other action by the Trustee,
unless and until the Trustee shall have received written notice thereof from the
Company or the Guarantor, any Holder of the Securities and the Guarantees
endorsed thereon, any paying or conversion
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agent of the Company or the Guarantor or the holder or representative of any
class of Senior Company Indebtedness.
Section 1608. Trustee's Relation to Senior Company Indebtedness and Senior
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Guarantor Indebtedness.
----------------------
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Company Indebtedness or Senior Guarantor Indebtedness
at the time held by it, to the same extent as any other holder of Senior Company
Indebtedness or Senior Guarantor Indebtedness, and nothing in Section 713 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder. Notwithstanding anything in this Indenture or in the Securities of
any series, nothing in this Article Sixteen shall apply to claims of or payment
to the Trustee under or pursuant to Sections 606 and 707.
With respect to holders of Senior Company Indebtedness or Senior Guarantor
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Sixteen,
and no implied covenants or obligations with respect to the holders of Senior
Company Indebtedness or Senior Guarantor Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Company Indebtedness or Senior Guarantor
Indebtedness and the Trustee shall not be liable to any holder of Senior Company
Indebtedness or Senior Guarantor Indebtedness if it shall pay over or deliver to
Holders, the Company, the Guarantor or any other Person monies or assets to
which any holder of Senior Company Indebtedness or Senior Guarantor Indebtedness
shall be entitled by virtue of this Article Sixteen or otherwise.
Section 1609. Rights of Holders of Senior Company
-----------------------------------
Indebtedness and Senior Guarantor
---------------------------------
Indebtedness Not Impaired.
-------------------------
No right of any present or future holder of any Senior Company Indebtedness
or Senior Guarantor Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or the Guarantor, as the case may be, or by any
noncompliance by the Company or the Guarantor, as the case may be, with the
terms, provisions or covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
103
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
Section 1701. Securities in Foreign Currencies.
--------------------------------
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
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 other than United States
dollars shall be treated for any such action or distribution as that amount of
United States 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 action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company or the Guarantor may specify in a written notice to
the Trustee or, in the absence of such written notice, as the Trustee may
determine.
* * * * *
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.
104
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] KEYSTONE FINANCIAL MID-ATLANTIC
FUNDING CORP.
Attest:
By______________________
Name:
_______________________ Title:
[SEAL] KEYSTONE FINANCIAL, INC.
Attest:
By______________________
Name:
_______________________ Title:
[SEAL] BANKERS TRUST COMPANY
Attest:
By______________________
Name:
_______________________ Title:
000
XXXXXXXXXXXX XX XXXXXXXXXXXX )
: SS:
COUNTY OF [ ] )
On the [ ] day of ______, 1997, before me personally came [ ], to
me known, who, being by me duly sworn, did depose and say that he/she is a
[ ] of KEYSTONE FINANCIAL MID-ATLANTIC FUNDING CORP., a Pennsylvania
corporation, one of the persons described in and who executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporation's seal; that it was so affixed by
authority of the Board of Directors of said corporation: and that he/she signed
his/her name thereto by like authority.
_________________________
Notary Public
[NOTARIAL SEAL]
COMMONWEALTH OF PENNSYLVANIA )
: SS:
COUNTY OF [ ] )
On the [ ] day of ________, 1997, before me personally came [ ], to
me known, who, being by me duly sworn, did depose and say that he/she is a
[ ] of KEYSTONE FINANCIAL, INC., a Pennsylvania corporation, one of the
persons described in and who executed the foregoing instrument; that he/she
knows the seal of said corporation; that the seal affixed to said instrument is
such corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he/she signed his/her name thereto by
like authority.
_________________________
Notary Public
[NOTARIAL SEAL]
000
XXXXX XX [ ] )
: SS:
COUNTY OF [ ] )
On the ____ day of _________, 1997, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he/she is [ ] of BANKERS TRUST COMPANY, a [ ], one of the persons
described in and who executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporation's seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he/she signed his/her name thereto by
like authority.
_________________________
Notary Public
[NOTARIAL SEAL]
107
