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EXHIBIT 4.1
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XXXXXXXX HOLDINGS OF DELAWARE, INC.
AND
CITIBANK, N.A., Trustee
Senior Indenture
Dated as of _____________, 199__
__________
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CROSS REFERENCE SHEET *
__________
Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of ___________, 199__ between XXXXXXXX HOLDINGS OF DELAWARE, INC. and
CITIBANK, N.A., Trustee:
Section of the Act Section of Indenture
------------------ --------------------
310(a)(1) and (2)................ 6.9
310(a)(3) and (4)................ Inapplicable
310(b)........................... 6.8 and 6.10(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13(a) and (c)(1) and (2)
311(b)........................... 6.13(b)
311(c)........................... Inapplicable
312(a)........................... 4.1 and 4.2(a)
312(b)........................... 4.2(a) and (b)(i) and (ii)
312(c)........................... 4.2(c)
313(a)........................... 4.4(a)(i), (ii), (iii), (iv), (v) and (vi)
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.4
313(c)........................... 4.4
313(d)........................... 4.4
314(a)........................... 4.3
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)........................ 5.9
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
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* This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Composite Rate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Funded Indebtedness . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
covenant defeasance . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . 4
Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 4
Holder, Holder of Securities,
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 5
original issue date . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Global Security . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 7
Security or Securities . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unregistered Security . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2. Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . 9
SECTION 2.4. Authentication and Delivery of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.5. Execution of Securities . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.6. Certificate of Authentication . . . . . . . . . . . . . . . . . . 16
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest . . . . . . . . . . . . . . . 16
SECTION 2.8. Registration, Transfer and Exchange . . . . . . . . . . . . . . . 17
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.10 Cancellation of Securities;
Destruction Thereof . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.11. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest . . . . . . . . . . . . . . . . 23
SECTION 3.2. Offices for Payments, etc . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5. Written Statement to Trustee . . . . . . . . . . . . . . . . . . 26
SECTION 3.6. Limitations upon Liens . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.7. Luxembourg Publications . . . . . . . . . . . . . . . . . . . . . 30
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.2. Preservation and Disclosure of
Securityholders Lists . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.3. Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.4. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default . . . . . . . . . . . . . . . . 35
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.3. Application of Proceeds . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.4. Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.6. Limitations on Suits by
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.9. Control by Holders of Securities . . . . . . . . . . . . . . . . 43
SECTION 5.10. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . 45
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ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.2. Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . 47
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof . . . . . . . . . . . . . . . . 48
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.5. Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . 49
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc . . . . . . . . . . . . . . . . . . 49
SECTION 6.8. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.9. Persons Eligible for Appointment
as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.11. Acceptance of Appointment by
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . . . . . . . . . 53
SECTION 6.13. Preferential Collection of Claims
Against the Issuer . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . 54
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities . . . . . . . . . . . . . . . . . . . 56
SECTION 7.3. Holders to be Treated as Owners . . . . . . . . . . . . . . . . . 57
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.5. Right of Revocation of Action Taken . . . . . . . . . . . . . . . 58
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders . . . . . . . . . . . . . . . . . . 59
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.3. Effect of Supplemental Indenture . . . . . . . . . . . . . . . . 62
SECTION 8.4. Documents to Be Given to Trustee . . . . . . . . . . . . . . . . 62
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 62
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc.
Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.2. Successor Corporation Substituted . . . . . . . . . . . . . . . . 63
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities . . . . . . . . . . . . . . 69
SECTION 10.3. Repayment of Moneys Held by Paying
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.5. Indemnity For U.S. Government
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.6. Excess Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons . . . . . . . . . . . . . . . . . . . . 70
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SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.8. New York Law to Govern . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.10. Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.11. Securities in a Foreign Currency
or in ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.12. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.2. Notice of Redemption; Partial
Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.3. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 12.5. Mandatory and Optional Sinking
Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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THIS INDENTURE, dated as of _____________, 199__ between
XXXXXXXX HOLDINGS OF DELAWARE, INC., a Delaware corporation (the "Issuer"), and
CITIBANK, N.A., as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Article. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. 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.
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The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in
Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the Securities of
each series, provided, that, in the case of the Securities with variable rates
of interest, the interest rate to be used in calculating the Composite
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Rate shall be the interest rate applicable to such Securities at the beginning
of the year in which the Composite Rate is being determined and, provided,
further, that, in the case of Securities which do not bear interest, the
interest rate to be used in calculating the Composite Rate shall be a rate
equal to the yield to maturity on such Securities, calculated at the time of
issuance of such Securities) multiplied, in the case of each series of
Securities, by the percentage of the aggregate principal amount of the
Securities of all series Outstanding represented by the Outstanding Securities
of such series. For the purposes of this calculation, the aggregate principal
amounts of Outstanding Securities that are denominated in a foreign currency,
shall be calculated in the manner set forth in Section 11.11.
"Consolidated Funded Indebtedness" means the aggregate of all
outstanding Funded Indebtedness of the Issuer and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Net Tangible Assets" means the total assets
appearing on a consolidated balance sheet of the Issuer and its consolidated
Subsidiaries, less:
(1) intangible assets, unamortized debt discount and expense
and stock expense and other deferred debits;
(2) all current and accrued liabilities (other than
Consolidated Funded Indebtedness and capitalized rentals or leases);
deferred credits (other than deferred investment tax credits),
deferred gains and deferred income and xxxxxxxx recorded as revenues
deferred pending the outcome of a rate proceeding (less applicable
income taxes) to the extent refunds thereof shall not have been
finally determined;
(3) all reserves (other than for deferred Federal income
taxes arising from timing differences) not already deducted from
assets;
(4) all advances made by the Issuer or its consolidated
Subsidiaries to finance oil or natural gas exploration and development
to the extent that the Indebtedness related thereto and of an equal
amount is excluded from Funded Indebtedness by virtue of the proviso
to the definition thereof;
(5) an amount equal to the amount excluded from Funded
Indebtedness representing "production payment" financing of oil or
natural gas exploration and development by the Issuer or its
consolidated Subsidiaries; and
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(6) appropriate allowance for minority stock- holder
interests.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, except that for purposes of the presentation of Registered
Securities for payment or registration of transfer or exchange, such term means
the office or agency of the Trustee in said city at which at any particular
time the corporate agency business of the Trustee shall be conducted which
office at the date of execution of this Indenture is located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" shall have the meaning set forth in
Section 10.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Funded Indebtedness" means any Indebtedness which matures
more than one year after the date as of which Funded Indebtedness is being
determined less any such Indebtedness as will be retired through or by means of
any deposit or payment required to be made within one year from such date under
any prepayment provision, sinking fund, purchase fund or otherwise; provided,
however, that such term shall not include Indebtedness of the Issuer or any of
its Subsidiaries incurred to finance outstanding
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advances to others to finance oil or natural gas exploration and development to
the extent that the latter are not in default in their obligations to the
Issuer or such Subsidiary, nor shall such term include Indebtedness of the
Issuer or any of its Subsidiaries incurred to finance oil or natural gas
exploration and development by means commonly referred to as a "production
payment" to the extent that the Issuer or any of its Subsidiaries have not
guaranteed the repayment of the production payment.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the Person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means indebtedness which is for money borrowed
from others.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six)
Xxxxxxxx Holdings of Delaware, Inc., a Delaware corporation and, subject to
Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by any one of the Chairman of the Board, the
President, a Vice President, a Secretary or a Treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Controller, Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5, if applicable.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 11.5, if applicable.
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"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided
for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by
the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if
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any, thereon, the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Issuer or
its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "vice president") the cashier, the secretary, the treasurer,
any trust officer, any assistant trust officer, any assistant vice president,
any assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
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"Subsidiary" means any corporation at least a majority of the
outstanding securities of which having ordinary voting power shall be owned by
the Issuer and/or another Subsidiary or Subsidiaries.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
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The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series referred to in
the within-mentioned Senior Indenture.
Citibank, N.A.,
as Trustee
By _____________________
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication to be borne by the Securities of each such
series, an alternative certificate of authentication substantially as follows:
"This is one of the Securities of the series referred to in
the within-mentioned Senior Indenture.
_________________________,
as Authenticating Agent
By _____________________
Authorized Officer"
SECTION 2.3 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, and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Issuer. There shall be established in or pursuant
to one or more Board Resolutions (and,
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to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in
the case of Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be
determined the rate of penalty, if any, on any overdue interest
payment and the right of the Issuer to extend the interest payment
periods of the Securities of the series, the maximum duration, if any,
of any such extension or extensions, the additional interest, if any
payable on such Securities if any interest payment period is extended
and any notice (which in every case shall include notice to the
Trustee) which must be given upon the exercise of such right;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than
as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem,
repurchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or
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at the option of a Holder thereof and the price or prices at which and
the period or periods within which and any terms and conditions upon
which Securities of the series shall be redeemed, repurchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of
such series shall be payable;
(12) if the principal of or interest on the Securities of
such series are to be payable, at the election of the Issuer or a
Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest
on the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person
who is not a U.S. Person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
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(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 satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(18) any other Events of Default or covenants with respect to
the Securities of such series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers' Certificate or
in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in
this Section) or pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
specified in or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to electronic instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs 2, 3 and 4 below only at or
before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
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(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee prior
to the delivery to the Trustee of such Securities for authentication
and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an
aggregate principal amount not exceeding the aggregate principal
amount established for such series, pursuant to an Issuer Order or
pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures and (d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to electronic instructions from the Issuer or its
duly authorized agent or agents, which instructions shall be promptly
confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form
or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting to it to rely
on an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an
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Issuer Order shall have been established, all such terms will
have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and authenticated by the Trustee
in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be
valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
Subsidiaries that is material to the Issuer and its
Subsidiaries, considered as one enterprise, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Issuer or any Subsidiary, and no consent, approval or
authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
in which case the opinion shall state that such counsel believes he and the
Trustee are entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
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The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal (except in the case of Coupons) which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such
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officer before the Security or Coupon so signed (or the Security to which the
Coupon so signed appertains) shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security or Coupon nevertheless may
be authenticated and delivered or disposed of as though the person who signed
such Security or Coupon had not ceased to be such officer of the Issuer; and
any Security or Coupon may be signed on behalf of the Issuer by such persons
as, at the actual date of the execution of such Security or Coupon, shall be
the proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee or an Authenticating
Agent, if any, by the manual signature of one of their authorized officers,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. No Coupon shall be entitled to the benefits of this Indenture
or shall be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall have been
duly executed by the Trustee or an Authenticating Agent, if any. The execution
of such certificate by the Trustee or an Authenticating Agent, if any, upon any
Security executed by the Issuer shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to
in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The Person in whose name any Registered Security of any series
is registered at the close of business on any record date
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applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or exchange of such
Registered Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default in the
payment of the interest due on such interest payment date for such series, in
which case such defaulted interest shall be paid to the Persons in whose names
Outstanding Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series established as contemplated by Section
2.3, or, if no such date is so established, if such interest payment date is
the first day of a calendar month, the fifteenth day of the next preceding
calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times
such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
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At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3,
with, in the case of Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto appertaining, and
upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3, Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly cancelled and disposed of by the Trustee
and the Trustee will deliver a certificate of disposition thereof to the
Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
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connection with any exchange or registration of transfer of Securities. No
service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities. If
a successor Depositary for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized
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denominations, in an aggregate principal amount equal to the principal amount
of the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the
Trustee or its agent. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to this Section
2.8 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct
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from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or
stolen, or in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer 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 or its agent)
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact
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that any such Security or Coupon is destroyed, lost or stolen shall constitute
an additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time enforceable
by anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen Securities and
Coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer or
its agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the
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definitive Securities. Without unreasonable delay the Issuer shall execute and
shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any agency maintained by the Issuer for such purpose as specified pursuant to
Section 2.3, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and,
in the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on
the issue and delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any
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restrictions that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only to or upon the written
order of the Holders thereof and, at the option of the Issuer, may be paid by
wire transfer or by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made, in the Issuer's
sole discretion, without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars of Unregistered Securities
of any series and Coupons appertaining thereto which are payable in Dollars may
be made at an agency of the Issuer maintained in the Borough of Manhattan, The
City of New York if such payment in Dollars at each agency maintained by the
Issuer outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section
to be located in the Borough of Manhattan, The City of New York, or shall fail
to give such notice of the location or of any change in the location of any of
the
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above agencies, presentations and demands may be made and notices may be served
at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or
Coupons appertaining thereto, if any, or of the Trustee, and
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities of such series)
to make any payment of the principal of or interest on the Securities
of such series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, provided,
in the case of bearer securities, deposit will be made at least 1 Business Day
prior to the payment date, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of any failure to take such action.
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If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before May 31 in each year (beginning with May 31,
1996) an Officers' Certificate (which need not comply with Section 11.5)
stating that in the course of the performance by the signers of their duties as
officers of the Issuer they would normally have knowledge of any default by the
Issuer in the performance of any covenants contained in this Indenture, stating
whether or not they have knowledge of any such default and, if so, specifying
each such default of which the signers have knowledge and the nature thereof.
At least one signatory to such Officers' Certificate shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Issuer.
SECTION 3.6 Limitations upon Liens. After the date hereof
and so long as any Securities are outstanding, the Issuer will not, and will
not permit any Subsidiary to, issue, assume or guarantee any Indebtedness
secured by a mortgage, pledge, lien, security interest or encumbrance (any
mortgage, pledge, lien, security interest or encumbrance being hereinafter in
this Article referred to as a "mortgage" or "mortgages" or as a "lien" or
"liens") of, or upon any property of the Issuer or of any Subsidiary, without
effectively providing that the Securities (together with, if the Issuer shall
so determine, any other Indebtedness of the Issuer ranking equally with the
Securities) shall be equally and ratably secured with such Indebtedness;
provided, however, that the foregoing restriction shall not apply to
(a) Any purchase money mortgage created by the Issuer or a
Subsidiary to secure all or part of the purchase price of
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any property (or to secure a loan made to enable the Issuer or a
Subsidiary to acquire the property described in such mortgage),
provided that the principal amount of the Indebtedness secured by any
such mortgage, together with all other Indebtedness secured by a
mortgage on such property, shall not exceed the purchase price of the
property acquired;
(b) Any mortgage existing on any property at the time of the
acquisition thereof by the Issuer or a Subsidiary whether or not
assumed by the Issuer or a Subsidiary, and any mortgage on any
property acquired or constructed by the Issuer or a Subsidiary and
created not later than 12 months after (i) such acquisition or
completion of such construction or (ii) commencement of full operation
of such property, whichever is later; provided, however, that, if
assumed or created by the Issuer or a Subsidiary, the principal amount
of the Indebtedness secured by such mortgage, together with all other
Indebtedness secured by a mortgage on such property, shall not exceed
the purchase price of the property, acquired and/or the cost of the
property constructed;
(c) Any mortgage created or assumed by the Issuer or a
Subsidiary on any contract for the sale of any product or service or
any rights thereunder or any proceeds therefrom, including accounts
and other receivables, related to the operation or use of any property
acquired or constructed by the Issuer or a Subsidiary and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later;
(d) Any mortgage existing on any property of a Subsidiary at
the time it becomes a Subsidiary;
(e) Any refunding or extension of maturity, in whole or in
part, of any mortgage created or assumed in accordance with the
provisions of subdivision (a), (b), (c) or (d) above or (j) or (bb)
below, provided that the principal amount of the Indebtedness secured
by such refunding mortgage or extended mortgage shall not exceed the
principal amount of the Indebtedness secured by the mortgage to be
refunded or extended outstanding at the time of such refunding or
extension and that such refunding mortgage or extended mortgage shall
be limited in lien to the same property that secured the mortgage so
refunded or extended;
(f) Any mortgage created or assumed by the Issuer or a
Subsidiary to secure loans to the Issuer or a Subsidiary maturing
within 12 months of the date of creation thereof and not renewable or
extendible by the terms thereof at the option of the obligor beyond
such 12 months, and made in the ordinary course of business;
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(g) Mechanics' or materialmen's liens or any lien or charge
arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), deposits to secure
public or statutory obligations, deposits to secure or in lieu of
surety, stay or appeal bonds and deposits as security for the payment
of taxes or assessments or other similar charges;
(h) Any mortgage arising by reason of deposits with or the
giving of any form of security to any governmental agency or any body
created or approved by law or governmental regulation for any purpose
at any time as required by law or governmental regulation as a
condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Issuer or a Subsidiary to
maintain self-insurance or to participate in any fund for liability on
any insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions or other social security or
to share in the privileges or benefits required for companies
participating in such arrangements;
(i) Any mortgage which is payable, both with respect to
principal and interest, solely out of the proceeds of oil, gas, coal
or other minerals or timber to be produced from the property subject
thereto and to be sold or delivered by the Issuer or a Subsidiary,
including any interest of the character commonly referred to as a
"production payment";
(j) Any mortgage created or assumed by a Subsidiary on oil,
gas, coal or other mineral or timber property, owned or leased by a
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however,
that neither the Issuer nor any other Subsidiary shall assume or
guarantee such loans or otherwise be liable in respect thereto;
(k) Mortgages upon rights-of-way;
(l) Undetermined mortgages and charges incidental to
construction or maintenance;
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any
right, power, franchise, grant, license, permit or by any provision of
law, to terminate or to require annual or other periodic payments as a
condition to the continuance of such right, power, franchise, grant,
license or permit;
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(n) The lien of taxes and assessments which are not at the
time delinquent;
(o) The lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith
at the time by the Issuer or a Subsidiary;
(p) The lien reserved in leases for rent and for compliance
with the terms of the lease in the case of leasehold estates;
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the
business of the Issuer and its Subsidiaries considered as a whole;
(r) Any mortgages securing Indebtedness neither assumed nor
guaranteed by the Issuer or a Subsidiary nor on which it customarily
pays interest, existing upon real estate or rights in or relating to
real estate (including rights-of-way and easements) acquired by the
Issuer or a Subsidiary, which mortgages do not materially impair the
use of such property for the purposes for which it is held by the
Issuer or such Subsidiary;
(s) Easements, exceptions or reservations in any property of
the Issuer or a Subsidiary granted or reserved for the purpose of
pipelines, roads, telecommunication equipment and cable, streets,
alleys, highways, railroad purposes, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or
common use of real property, facilities and equipment, which do not
materially impair the use of such property for the purposes for which
it is held by the Issuer or such Subsidiary;
(t) Rights reserved to or vested in any municipality or
public authority to control or regulate any property of the Issuer or
a Subsidiary, or to use such property in any manner which does not
materially impair the use of such property for the purposes for which
it is held by the Issuer or such Subsidiary;
(u) Any obligations or duties, affecting the property of the
Issuer or a Subsidiary, to any municipality or public authority with
respect to any franchise, grant, license or permit;
(v) The liens of any judgments in an aggregate amount not in
excess of $1,000,000 or the lien of any judgment the execution of
which has been stayed or which has been appealed and secured, if
necessary, by the filing of an appeal bond;
(w) Zoning laws and ordinances;
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(x) Any mortgage existing on any office equipment, data
processing equipment (including computer and computer peripheral
equipment) or transportation equipment (including motor vehicles,
aircraft and marine vessels);
(y) Any mortgage created or assumed by the Issuer or a
Subsidiary on oil, gas, coal or other mineral or timber property owned
by the Issuer or a Subsidiary;
(z) Leases now or hereafter existing and any renewals or
extensions thereof;
(aa) Any mortgage created by the Issuer or a Subsidiary on
any contract (or any rights thereunder or proceeds therefrom)
providing for advances by the Issuer or such Subsidiary to finance gas
exploration and development, which mortgage is created to secure
indebtedness incurred to finance such advances; and
(bb) Any mortgage not permitted by clauses (a) through (aa)
above if at the time of, and after giving effect to, the creation or
assumption of any such mortgage, the aggregate of all Indebtedness of
the Issuer and its Subsidiaries secured by all such mortgages not so
permitted by clauses (a) through (aa) above do not exceed 5% of
Consolidated Net Tangible Assets.
In the event that the Issuer or a Subsidiary shall hereafter
secure the Securities equally and ratably with any other obligation or
Indebtedness pursuant to the provisions of this Section 3.6, the Trustee is
hereby authorized to enter into an indenture supplemental hereto and to take
such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities so secured, equally and
ratably with such other obligation or Indebtedness.
Subject to the provisions of Section 6.1, the Trustee, at its
request, may receive an Opinion of Counsel as conclusive evidence that any such
supplemental indenture or steps taken to secure the Securities equally and
ratably comply with the provisions of this Section 3.6.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.8, 6.10(a), 6.11, 8.2,
10.4, 12.2 or 12.5 or Section 310(b) of the Trust Indenture Act of 1939, the
party making such publication in the Borough of Manhattan, The City of New York
and London shall also, to the extent that notice is required to be given to
Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officers' Certificate delivered to such
party, make a similar publication in Luxembourg.
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of each series:
(a) semiannually and not more than 15 days after each record
date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Registered Securities (i) contained in the most recent list
furnished to it as provided in Section 4.1, (ii) received by it in the capacity
of Security registrar for such series, if so acting, and (iii) filed with it
within two preceding years pursuant to Section 313(c)(2) of the Trust Indenture
Act of 1939. The Trustee may destroy any list furnished to it as provided in
Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (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 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 a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application 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
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(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Registered Securities of such series or of all Registered
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Registered Securities, as the case may be, whose name and address appears in
the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 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
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
Registered Securities of such series or of all Registered Securities, as the
case may be, 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
Securityholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
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
the provisions of subsection (b) of this Section, 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
such subsection (b).
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SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 30 days after the Issuer
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 Issuer
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 Issuer
is not required to file information, documents, or reports pursuant to
either of such Sections, then to 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 debt
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to 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 Issuer with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities within
30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act of
1939, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section as may be required to be transmitted to such Holders
by rules and regulations prescribed from time to time by the
Commission.
SECTION 4.4 Reports by the Trustee. The Trustee shall
transmit to the Securityholders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act of 1939 at the times and in the manner provided pursuant thereto. Reports
required annually shall be provided by October 15 of each year for the previous
year commencing October 15, 1996.
A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to notify
the Trustee with respect
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to any series when and as the Securities of such series become admitted to
trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any instalment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon any redemption,
by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with) and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected
thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization arrangement, adjustment or composition of or in respect
of the Issuer under the Federal bankruptcy law or any other applicable
Federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of
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any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(e) the institution by the Issuer of proceedings to be
adjudicated a bankrupt or insolvent or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal bankruptcy law or any other applicable
Federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of
any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors;
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series;
provided, however, that the occurrence of any of the events described in the
foregoing clause (c) or (f) shall not constitute an Event of Default if such
occurrence is the result of changes in generally accepted accounting principles
as recognized by the American Institute of Certified Public Accountants at the
date as of which this Indenture is executed and a certificate to such effect is
delivered to the Trustee by the Issuer's independent public accountants.
If an Event of Default described in clauses (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (f) (if the Event of Default under
clause (c) or (f), as the case may be, is with respect to all series of
Securities then Outstanding), (d) or (e) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in
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aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue instalments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series (or at the respective rates of interest
or Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein--then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless
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such declaration has been rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration, together
with interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in the case an Event of Default
referred to in Section 5.1(a) shall occur with respect to the Securities of any
series, or (b) in case default shall be made in the payment of all or any part
of the principal of any of the Securities of any series when the same shall
have become due and payable, whether upon maturity of the Securities of such
series or upon any redemption or by declaration or otherwise -- then upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series, and such Coupons,
for principal or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue instalments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its
negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
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In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, 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 pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, 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 reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such
other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities
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incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such Securities
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of any series shall be
applied in the following order at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee
and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances
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made, by the Trustee and each predecessor Trustee except as a result
of negligence or bad faith;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the instalments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
instalments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue instalments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any instalment of interest over any other instalment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
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SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of each affected series
then Outstanding (treated as a single class) shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.9; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after
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the respective due dates expressed in such Security or Coupon, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, 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.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture 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 shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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 by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c) of Trust Indenture
Act of 1939, unless in each case such defaults shall have been cured before the
mailing or publication of such notice (the term "defaults" for the purpose of
this Section being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series, or in the payment of any
sinking fund instalment on such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith
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determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (c) or (f) of Section 5.1 (if
the suit relates to Securities of more than one but less than all series), l0%
in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (c) or
(f) (if the suit under clause (c) or (f) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.1, 10% in aggregate principal amount of
all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
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.
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No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) 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 pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
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SECTION 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, Coupon, Security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond,
debenture, note, Coupon, Security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee
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by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions
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of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or Coupons,
and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 6.8 Conflicting Interests. If the Trustee has or
shall acquire any conflicting interest, within the meaning of the Trust
Indenture Act of 1939, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act of 1939 and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by reason of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 6.9 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $5,000,000, and which is authorized under such laws to
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exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
its principal place of business in the Borough of Manhattan, The City of New
York if there be such a corporation in such location willing to act upon
reasonable and customary terms and conditions. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York,
and at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if
any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939 at such addresses as were so furnished to the Trustee and
(iii) by mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they shall
appear on the registry books. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 6.11.
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SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the
predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 6.8 and Section 310(a) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of
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Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg), (b) if any Unregistered Securities of a series
affected are then Outstanding, to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 4.4(c)(ii), by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer
for such purpose) and (c) to the Holders of Registered Securities of each
series affected, by mailing such notice to such Holders at their addresses as
they shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate
Securities of any series in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of the Issuer
(or any other obligor upon the Securities), the
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Trustee shall be subject to the provisions of the Trust Indenture Act of 1939
regarding the collection of claims against the Issuer (or such other obligor).
For purpose of Sections 311(b)(4) and (6) of the Trust Indenture Act of 1939:
(a) "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; and
(b) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Issuer (or any such obligor) 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 a lien upon the goods, wares or
merchandise or the receivables or proceeds arising 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 Issuer (or any such
obligor) arising from the making, drawing, negotiating or incurring of
the draft, xxxx of exchange, acceptance or obligation.
SECTION 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to 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
for such series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
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Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee
and to the Issuer. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14 with respect to one or more series of
Securities, the Trustee may upon receipt of an Issuer Order appoint a successor
Authenticating Agent and the Issuer shall provide notice of such appointment to
all Holders of Securities of such series in the manner and to the extent
provided in Section 11.4. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable
to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and
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(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the Person executing such
instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the Person executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the identifying number
of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such
series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities
dealer by the Person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities of one
or more series specified therein. The holding by the Person named in
any such certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later
date issued in respect of the same Securities shall be produced, or
(2) the Security of such series specified in such certificate shall be
produced by some other Person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding.
The fact and date of the execution of any such instrument and the
amount and numbers of Securities of any series held by the Person so
executing such instrument and the amount and numbers of any Security
or Securities for such series may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for
such series may deem sufficient.
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(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining
the identify of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration) not more than 90 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent with respect to such action or revoke such vote or consent.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such Person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining
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whether the Trustee shall be protected in relying on any such direction,
consent or waiver only Securities which the Trustee knows are so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Officers' Certificate), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Securities or Coupons;
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(e) to establish the form or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3; and
(f) 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 6.11.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof, or make the principal thereof
(including any amount in respect of original issue discount) or interest
thereon payable in any coin or currency other than that provided in the
Securities and Coupons or in accordance with the terms thereof, or reduce the
amount of the principal of an Original Issue Discount Security that would be
due and payable upon
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an acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or alter the provisions
of Section 11.11 or 11.12 or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (b)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
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 Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section
4.4(c)(ii), by mailing a notice thereof by first-class mail
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to such Holders at such addresses as were so furnished to the Trustee and (iii)
if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., Only on Certain
Terms.
The Issuer shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into
which the Issuer is merged or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Issuer
substantially as an entirety shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if any,
according to their tenor, and the performance of every covenant of
this Indenture on the part of the Issuer to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing;
(c) the Issuer 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
(d) the Issuer has delivered to the Trustee such other
documents as the Trustee may, in its discretion, reasonably require.
SECTION 9.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, lease or conveyance, and following such
an assumption by the successor Person, such successor Person shall succeed to
and be substituted for the Issuer, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Issuer prior to such succession any or all
of the Securities issuable hereunder which together with any Coupons
appertaining thereto theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person, instead
of the Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously
shall have been signed and delivered by the officers of
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the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued together with any
Coupons appertaining thereto shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor Person which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.9) as
and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the entire amount in
cash (other than moneys repaid by the Trustee or any paying agent to the Issuer
in accordance with
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Section 10.4) or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the Issuer, then
this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series and of
Coupons appertaining thereto and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, and
(vi) the obligations of the Issuer under Sections 3.2 and 6.6) and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and Coupons
held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in
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clause (a) below, the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to
in subparagraph (a) below, and the provisions of this Indenture with respect to
the Securities of such series and Coupons appertaining thereto shall no longer
be in effect (except as to (i) rights of registration of transfer and exchange
of Securities of such series and of Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of the Holders
of Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them and (vi) the obligations of the Issuer under Sections 3.2
and 6.6) and the Trustee, at the expense of the Issuer, shall at the Issuer's
request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable through final maturity or earlier redemption and (B) any
mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture and
the Securities of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which
the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue
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Service a ruling or (y) since the date hereof, there has been a change
in the applicable Federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the
Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
(d) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with; and
(e) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the Issuer
shall have given the Trustee irrevocable directions to give notice of
such redemption in the name, and at the expense of the Issuer, under
arrangements satisfactory to the Trustee.
(C) The Issuer shall be released from its obligations under
Sections 3.6 and 9.1 with respect to the Securities of any series, and any
Coupons appertaining thereto, Outstanding on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of any series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such
Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder
of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection C of
this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, U.S. Government Obligations
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such series and
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Coupons appertaining thereto on each date that such principal or
interest is due and payable through final maturity or earlier
redemption and (B) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series.
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.1(d) and (e) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 310(b) of and for
purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer.
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred.
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
(h) If the Securities of such series are to be redeemed,
either Notice of such redemption shall have been given or the Issuer
shall have given the Trustee irrevocable directions to give Notice of
such redemption in the name, and at the expense of the Issuer under
arrangements satisfactory to the Trustee.
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SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.7, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
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SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
SECTION 10.6 Excess Funds. The Trustee shall deliver to
the Issuer from time to time upon Issuer Order any U.S. Government Obligations
or money held by it as provided in Section 10.1 which, as expressed in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may include the applicable such opinion delivered to the Trustee pursuant to
Section 10.1), are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such obligations or
money were deposited or received.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Securities or Coupons, if any, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
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SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to Xxxxxxxx Holdings of
Delaware, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer or any
Holder of Securities or Coupons to or upon the Trustee shall be deemed to have
been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to Citibank, N.A. at its Corporate Trust Office, Attention: Corporate Agency
and Trust.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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 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.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent 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 have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture
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relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters or information with respect to which
is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or
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the date fixed for redemption or repayment of any such Security or Coupon shall
not be a Business Day, then, unless otherwise specified pursuant to Section 2.3
with respect to a series of Securities, payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after such
date.
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act of 1939 which is required
under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act of 1939 which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate in effect on the date of initial issuance of such series. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of
ECUs, Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the
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European Communities (or any successor thereto) as published in the Official
Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations
or, in the case of ECU, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in
a currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which a final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
entered, and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed
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to be payable and (iii) shall not be affected by judgment being obtained for
any other sum due under this Indenture. For purposes of the foregoing, "New
York Banking Day" means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii),
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior to the date fixed
for redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice
of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and in an Authorized Newspaper in London (and, if required by Section
3.7, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the
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redemption price, the numbers of the certificate for such Security being
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series
is to be redeemed in part only the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, provided, in the case of bearer
Securities, deposit will be made at least 1 Business Day prior to the payment
date, the Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount of money
sufficient to redeem on the redemption date all the Securities of such series
so called for redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption. The Issuer will deliver to
the Trustee at least 70 days prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to
the expiration of any restriction on such redemption, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
restriction has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such
series selected for redemption and, in the case of any Securities of such
series 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 of any series
shall relate, in the case of any Security
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.5 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of
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the Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
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 the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect
to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or
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not the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to
deliver such Officers' Certificate and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in
this Section.
If the sinking fund payment to be made in cash on the next
succeeding sinking fund payment date plus any unused balance of any preceding
sinking fund payments made in cash shall be $50,000 (or the equivalent thereof
in any Foreign Currency or ECU) or less the Trustee, unless requested by the
Issuer, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. The
amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of, and interest on, the Securities of such
series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date, provided, that in the case of bearer
Securities, such payment shall be made to the Trustee at least the Business Day
prior to the sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of ______________, 199__.
XXXXXXXX HOLDINGS OF DELAWARE, INC.
By ________________________________
Title:
[CORPORATE SEAL]
Attest:
By _________________________
Title:
CITIBANK, N.A.
TRUSTEE
By ________________________________
Title:
[CORPORATE SEAL]
Attest:
By _________________________
Title:
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STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ____ of ________, 199__ before me personally came
, to me personally known, who, being by me duly sworn, did depose and
say that he is the of Xxxxxxxx Holdings of
Delaware, Inc., one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
_______________________________________
Notary Public
STATE OF ______________ )
) ss.:
COUNTY OF ______________ )
On this ____ of _________, 199__ before me personally came
, to me personally known, who, being by me duly sworn, did depose and
say that he is _______________ of Citibank, N.A., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
_______________________________________
Notary Public
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