EXHIBIT 4.1
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MERCANTILE BANCORPORATION INC.
and
XXXXXX TRUST AND SAVINGS BANK
Trustee
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INDENTURE
REGARDING SENIOR SECURITIES
Dated as of ___________, 199_
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Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939
and
Indenture, dated as of ___________, 1997
between
MERCANTILE BANCORPORATION INC.
and
XXXXXX TRUST AND SAVINGS BANK, Trustee
Section of Act............. Section of Indenture
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310(a)(1), (2)............. 5.08
310(a)(3), (4)............. Inapplicable
310(a)(5).................. 5.08
310(b)..................... **
310(c)..................... Inapplicable
311(a), (b)................ **
311(c)..................... Inapplicable
312........................ **
313(a)..................... **
313(b)(1).................. Inapplicable
313(b)(2).................. **
313(c), (d)................ **
314(a)..................... **
314(b)..................... Inapplicable
314(c)(1) and (2).......... 15.05
314(c)(3).................. Inapplicable
314(d)..................... Inapplicable
314(e)..................... 15.05
314(f)..................... Inapplicable
315(a)(c) and (d).......... 5.01
315(b)..................... 4.08
315(e)..................... 4.09
316(a)(1).................. 4.01 and 4.07
316(a)(2).................. Omitted
316(a) last sentence....... 6.04
316(b)..................... 4.04
316(c)..................... 6.05
317(a)..................... 4.02
317(b)..................... 3.04(a)
318(a)..................... 15.07
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* This Reconciliation and Tie-sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
TABLE OF CONTENTS*
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Parties............................................................................. 1
Recitals............................................................................ 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.......................................................... 1
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series................................. 6
Section 2.02. Form of Securities and of Trustee's Certificate of Authentication.... 8
Section 2.03. Securities in Global Form............................................ 8
Section 2.04. Denomination, Authentication and Dating of Securities................ 9
Section 2.05. Execution of Securities.............................................. 11
Section 2.06. Exchange and Registration of Transfer of Securities.................. 12
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...................... 14
Section 2.08. Temporary Securities................................................. 15
Section 2.09. Payment of Interest; Interest Rights Preserved....................... 16
Section 2.10. Cancellation of Securities Paid, etc................................. 17
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. Payment of Principal and Interest.................................... 18
Section 3.02. Offices for Notices and Payments, etc................................ 18
Section 3.03. Provisions as to Paying Agent........................................ 19
Section 3.04. Statement as to Compliance........................................... 19
Section 3.05. Notice of Certain Defaults........................................... 20
Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of Assets.. 20
Section 3.07. Limitation on Creation of Liens...................................... 21
Section 3.08. Corporate Existence.................................................. 21
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* This table of contents is not part of the Indenture.
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Events of Default.................................................... 21
Section 4.02. Payment of Securities on Default; Suit Therefor...................... 23
Section 4.03. Application of Money Collected By Trustee............................ 24
Section 4.04. Proceedings by Securityholders....................................... 25
Section 4.05. Proceedings by Trustee............................................... 25
Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not Waiver..... 26
Section 4.07. Direction of Proceedings and Xxxxxx of Defaults by Majority of
Securityholders...................................................... 26
Section 4.08. Notice of Defaults................................................... 26
Section 4.09. Undertaking to Pay Costs............................................. 27
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of Trustee............................... 27
Section 5.02. Reliance on Documents, Opinions, etc................................. 28
Section 5.03. No Responsibility for Recitals, etc.................................. 29
Section 5.04. Trustee, Paying Agents or Registrar May Own Securities............... 29
Section 5.05. Money to be Held in Trust............................................ 29
Section 5.06. Compensation and Expenses of Trustee................................. 29
Section 5.07. Officers' Certificate as Evidence.................................... 29
Section 5.08. Eligibility of Trustee............................................... 30
Section 5.09. Resignation or Removal of Trustee.................................... 30
Section 5.10. Acceptance by Successor Trustee...................................... 31
Section 5.11. Succession by Xxxxxx, etc............................................ 31
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
Section 6.01. Action by Securityholders............................................ 32
Section 6.02. Proof of Execution by Securityholders................................ 32
Section 6.03. Who Are Deemed Absolute Owners....................................... 33
Section 6.04. Company Owned Securities Disregarded................................. 33
Section 6.05. Revocation of Consents; Future Holders Bound......................... 34
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
Section 7.01. Purpose of Meetings.................................................. 34
Section 7.02. Call of Meetings by Trustee.......................................... 34
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Section 7.03. Call of Meetings by Company or Securityholders....................... 35
Section 7.04. Qualifications for Voting............................................ 35
Section 7.05. Regulations.......................................................... 35
Section 7.06. Quorum............................................................... 36
Section 7.07. Voting............................................................... 36
Section 7.08. No Delay of Rights by Meeting........................................ 36
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders........... 37
Section 8.02. Supplemental Indentures with Consent of Securityholders of a Series.. 38
Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures........................................................... 39
Section 8.04. Notation on Securities............................................... 39
Section 8.05. Evidence of Compliance of Supplemental Indenture to be Furnished
Trustee.............................................................. 39
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 9.01. Company May Consolidate, etc., on Certain Terms...................... 39
Section 9.02. Successor Corporation Substituted.................................... 40
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 10.01. Applicability of Article............................................. 40
Section 10.02. Election to Redeem; Notice to Trustee................................ 40
Section 10.03. Selection by Trustee of Securities to be Redeemed.................... 40
Section 10.04. Notice of Redemption................................................. 41
Section 10.05. Deposit of Redemption Price.......................................... 41
Section 10.06. Securities Payable on Redemption Date................................ 42
Section 10.07. Registered Securities Redeemed in Part............................... 42
ARTICLE ELEVEN
SINKING FUNDS
Section 11.01. Applicability of Article............................................. 42
Section 11.02. Satisfaction of Sinking Fund Payments with Securities................ 43
Section 11.03. Redemption of Securities for Sinking Fund............................ 43
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ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01. Terms Set Forth in the Securities................................ 43
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture........................................... 44
Section 13.02. Deposited Money to be Held in Trust by Trustee................... 44
Section 13.03. Paying Agent to Repay Money Held................................. 44
Section 13.04. Return of Unclaimed Money........................................ 45
Section 13.05. Discharge of Indenture as to Certain Series of Securities........ 45
Section 13.06. Repayment to Company of Deposits Made Pursuant to Section 13.05.. 46
Section 13.07. Deposits Irrevocable............................................. 47
Section 13.08. Reinstatement 47
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations............ 47
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors....................... 47
Section 15.02. Official Acts by Successor Corporation........................... 47
Section 15.03. Addresses for Notices, etc....................................... 48
Section 15.04. Governing Law.................................................... 48
Section 15.05. Evidence of Compliance with Conditions Precedent................. 48
Section 15.06. Legal Holidays................................................... 48
Section 15.07. Trust Indenture Act to Control................................... 48
Section 15.08. No Security Interest Created..................................... 49
Section 15.09. Benefits of Indenture............................................ 49
Signatures............................................................................ 50
Acknowledgements...................................................................... 51
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THIS INDENTURE, dated as of __________________, 199_, is entered into by
MERCANTILE BANCORPORATION INC., a Missouri corporation (such corporation or,
subject to Article Nine, its successors and assigns, the "Company"), and XXXXXX
TRUST AND SAVINGS BANK, a banking corporation, duly organized and existing under
the laws of Illinois (such banking corporation or, subject to Article Five, its
successors and assigns as Trustee under this Indenture, the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness or warrants therefor to be
issued in one or more series (the "Securities"), as provided herein.
For and in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except
to the extent the application of such definitions is expressly limited to
certain instances, and except as otherwise expressly provided in this Indenture
or unless the context otherwise requires) for all purposes of this Indenture
will have the respective meanings specified in this Section 1.01. Except as
otherwise expressly provided in this Indenture or unless the context otherwise
requires, all other terms used in this Indenture that are defined in the Trust
Indenture Act or that the Trust Indenture Act defines by reference to the
Securities Act of 1933 or by Commission rule under the Trust Indenture Act will
have the meanings assigned to such terms in the Trust Indenture Act, in such
rule thereunder or in such Securities Act as in force at the date of the
execution of this Indenture.
Bank: The term "Bank" means (i) any institution, including savings
associations and other United States depository institutions, organized under
the laws of the United States, any State, the District of Columbia, Puerto Rico
or any territory of the United States that (a) accepts deposits that the
depositor has a legal right to withdraw on demand and (b) engages in the
business of making loans and (ii) any trust company organized under any of the
foregoing laws. Unless otherwise provided, for purposes of this Indenture, a
Bank also will be considered a "corporation."
Bearer Security: The term "Bearer Security" means any Security established
pursuant to Section 2.02 that is payable to bearer.
Bearer Security Tax Certificate: The term "Bearer Security Tax Certificate"
or "Certificate of non-U.S. Ownership", when used with respect to a Bearer
Security, means a certificate satisfying the requirements of Treasury Regulation
(S) 1.163-5(c)(2)(i)(D)(3), as that provision may be amended or redesignated
from time to time, which certificate shall be in a form approved by the Company.
Board of Directors: The term "Board of Directors" means the board of
directors of the Company or, which respect to any matter, any committee of the
Board of Directors duly authorized to act for the Board of Directors with
respect to such matter.
Business Day: The term "Business Day", with respect to each series of
Securities, means any day other than a Saturday or Sunday that is neither a
legal holiday nor a day on which banking institutions are authorized or
obligated by law or regulation to close in either The City of New York or
the City of Chicago or, with respect to Registered Notes that will bear interest
based on a specified percentage of London interbank offered quotation ("LIBOR"),
in London, England, or, in the case of Bearer Securities, in any Place of
Payment.
CEDEL: The term "CEDEL" means Cedel Bank, societe anonyme.
Commission: The term "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 of this Indenture
the 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.
Company: The term "Company" means the corporation identified as the Company
in the first paragraph of this Indenture until a successor corporation shall
succeed to and be substituted for the Company pursuant to the provisions of
Article Nine, and thereafter shall mean such successor corporation.
Company Order: The term "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its Chief Executive Officer, its President, any Executive Vice
President or any Senior Vice President and its Treasurer, any Assistant
Treasurer, its Secretary or any Assistant Secretary, and delivered to the
Trustee.
Consolidated Net Banking Assets: The term "Consolidated Net Banking Assets"
means all net assets owned directly or indirectly by a Subsidiary that is a Bank
as such net assets would be reflected on a consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting principles
generally accepted at the time.
Constituent Bank: The term "Constituent Bank" means any Subsidiary that is
a Bank.
Controlled Subsidiary: The term "Controlled Subsidiary" means any
Subsidiary of which more than 80% of the aggregate voting power of the
outstanding shares of the Voting Stock at the time is owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries, after giving effect to the
issuance to any Person other than the Company or any Controlled Subsidiary of
Voting Stock of the Subsidiary issuable on exercise of options, warrants or
rights to subscribe for such Voting Stock or on conversion of securities
convertible into such Voting Stock.
Coupon: The term "coupon" means any interest coupon appertaining to a
Bearer Security.
Defaulted Interest: The term "Defaulted Interest" has the meaning specified
in Section 2.09.
Depositary: The term "Depositary," with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, means
the Depository Trust Company, New York, New York, or such other Person
designated as Depositary by the Company in the manner provided in Section 2.01,
until a successor Depositary shall have been appointed pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" means or
includes each person who is then a Depositary
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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 means the Depositary
with respect to the Securities of that series.
Euroclear: The term "Euroclear" means Xxxxxx Guaranty Trust Company of
New York, Brussels Office, as operator of the Euroclear System.
Event of Default: The term "Event of Default" means any event specified in
Section 4.01, continued for the period of time, if any, and after the giving of
the notice, if any, designated in Section 4.01.
Global Security: The term "Global Security" means a Security issued to
evidence all or a part of a series of Securities in accordance with Section
2.03.
Indenture: The term "Indenture" means this instrument as originally
executed or, if amended or supplemented as provided in this Indenture, as so
amended or supplemented.
Interest: The term "interest," when used with respect to an Original Issue
Discount Security that by its terms bears interest only after Maturity, means
interest payable after Maturity.
Interest Payment Date: The term "Interest Payment Date," when used with
respect to any Security, means the Stated Maturity of an installment of interest
on such Security.
Maturity: The term "Maturity," when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by the
declaration of acceleration, call for redemption, repayment at the option of the
holder or otherwise.
Officers' Certificate: The term "Officers' Certificate," when used with
respect to the Company, means a certificate signed by the Chairman of the Board,
any Vice Chairman, the Chief Executive Officer, the President, any Executive
Vice President or any Senior Vice President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company. Except as
otherwise provided in this Indenture, each such certificate shall include the
statements provided for in Section 15.05.
Opinion of Counsel: The term "Opinion of Counsel" means an opinion in
writing signed by legal counsel, who may be an employee of or counsel to the
Company, who shall be acceptable to the Trustee, and delivered to the Trustee.
Except as otherwise provided in this Indenture, each opinion shall include the
statements provided for in Section 15.05.
Original Issue Discount Security; principal amount or aggregate principal
amounts: The term "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 4.01. The terms "principal amount" or "aggregate principal amount," when
used with respect to Original Issue Discount Securities, have the meaning (or
meanings) specified in the manner contemplated by Section 2.01 for purposes of:
determining the amount due and payable in the event of an acceleration of
Maturity as provided in Section 4.01; the redemption provisions in Article Ten;
determining whether the holders of the requisite principal amount of Outstanding
Securities of any Series have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture; and determining
whether a quorum is present at a meeting of Securityholders.
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Paying Agent: The term "Paying Agent," when used with respect to Securities
of any series, means any Person authorized by the Company to pay the principal
of and any premium or interest on any Securities of that series on behalf of the
Company.
Person: The term "Person" means a corporation, an association, a
partnership, an organization, a trust, an individual, a government or a
political subdivision thereof or a governmental agency.
Place of Payment: The term "Place of Payment" has the meaning stated in
Section 2.01(5).
Predecessor Security: The term "Predecessor Security" of any particular
Security means every previous Security evidencing all or a portion of the same
debt that was evidenced by such particular Security, and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.06 in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Principal Constituent Bank: The term "Principal Constituent Bank" means, at
any time, Mercantile Bank National Association and any other Constituent Bank,
the total assets of which (as set forth in the most recent statement of
condition of such Constituent Bank) equal more than 20% of the total assets of
all Constituent Banks as determined from the most recent statements of condition
of the Constituent Banks.
Principal office of the Trustee: The term "principal office of the Trustee"
or any other similar term means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office, at the date of this instrument, is located at 000 Xxxx Xxxxxx Xxxxxx,
00xx xxxxx, Xxxxxxx, Xxxxxxxx 00000.
Redemption Date: The term "Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
Redemption Price: The term "Redemption Price," when used with respect to
any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
Registered Security: The term "Registered Security" means any Security, in
the form of registered securities established pursuant to Section 2.02, that is
registered in the Security Register.
Regular Record Date: The term "Regular Record Date," with respect to the
interest payable on any Interest Payment Date on the Securities of any series,
means the date specified for that purpose as contemplated by Section 2.01.
Responsible Officer: The term "Responsible Officer," when used with respect
to the Trustee, means the Chairman or Vice Chairman of its board of directors,
the Chairman or Vice Chairman of the executive committee of the board of
directors, the President, any vice President, any senior trust officer, any
trust officer, any assistant trust officer 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 the above-named officers, or
to whom any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
Security or Securities; Outstanding: The term "Security" or "Securities"
has the meaning stated in the recital of this Indenture and means any Security
or Securities, as the case may be, authenticated and delivered pursuant to this
Indenture. Whenever this Indenture refers to any interest on or with
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respect to any Security that is represented by a coupon, such reference to the
Security also shall include reference to a coupon.
The term "Outstanding," when used with reference to Securities of any
series or the related coupons, subject to the provisions of Section 6.04, means,
as of any particular time, all Securities of such series or any related coupons
authenticated and delivered by the Trustee pursuant to this Indenture except:
(a) such Securities and coupons theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) such Securities and coupons, or portions thereof, for the payment
or redemption of which money in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent), provided that
if such Securities are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been provided as specified in Article Ten, or
provision satisfactory to the Trustee shall have been made for mailing such
notice; and
(c) Securities or coupons in lieu of or in substitution for which
other Securities or coupons shall have been authenticated and delivered
pursuant to the terms of Section 2.06, except to the extent that a bona
fide holder in due course of any such Securities shall have presented proof
satisfactory to the Trustee that such holder is a bona fide holder in due
course of any such Securities or coupons.
Security Register: The term "Security Register," when used with respect to
a Registered Security, has the meaning specified in Section 2.06(b).
Securityholder: The term "Securityholder," "holder of Securities," "holder"
or other similar term, when used with respect to a Registered Security, means
any Person in whose name at the time a particular Registered Security is
registered on the Security Register and, when used with respect to a Bearer
Security or coupon, the bearer thereof.
Special Record Date: The term "Special Record Date" has the meaning
specified in Section 2.09.
Stated Maturity: The term "Stated Maturity," when used with respect to any
Security or any payment of premium or any installment of interest thereon, means
the date specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
payment of premium or such installment of interest is due and payable.
Subsidiary: The term "Subsidiary" means any corporation of which a majority
of the aggregate voting power of the outstanding Voting Stock at the time shall
be owned by the Company or by the Company and one or more Subsidiaries or by one
or more Subsidiaries.
Trust Indenture Act: The term "Trust Indenture Act" means the Trust
Indenture Act of 1939 as it was in force at the date of execution of this
Indenture, except as provided in Section 8.03; provided, however, that, in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
Trustee: The term "Trustee" means the Person identified as the Trustee in
the first paragraph of this Indenture until a successor shall succeed to the
trusts created by this Indenture pursuant to the provisions of Article Five, and
thereafter shall mean such successor.
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United States: The term "United States" means the United States of America
(including the District of Columbia) and its possessions.
U.S. Government Obligations: The term "U.S. Government Obligations" has the
meaning specified in Section 13.05(b).
Vice President: The term "vice president" or "Vice President," when used
with respect to the Company or the Trustee, means any such officer whether or
not designated by a number or a word or words added before or after such title.
Voting Stock: The term "Voting Stock" of a corporation or other entity
means stock of the class or classes having general voting power in an election
of the board of directors, managers or trustees of such corporation or other
entity (irrespective of whether, at the time, stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
ARTICLE TWO
THE SECURITIES AND SECURITY FORMS
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series of
Securities shall be established either in an indenture supplemental hereto or in
or pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from 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 2.05, 2.06, 2.07, 8.04 or 10.07);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the formula by
which interest shall be calculated by the Company or an agent designated
for such purpose, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered Security on
any Interest Payment Date;
(5) the place or places, if any, in addition to those specified
herein, where the principal of and any premium or interest on Securities of
the series shall be payable (the "Place of Payment"), any Registered
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to holders pursuant to
this Indenture will be published;
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(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which and the other terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation, which in the
case of Securities of any series that are repayable at the option of a
holder thereof shall be set forth in the form of such Security;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both and, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such
series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary (if other that the Depository Trust Company) for such Global
Security or Securities and whether such global form shall be permanent or
temporary;
(10) if Securities of the series are to be issuable initially in the
form of one or more temporary Global Securities, the circumstances under
and the manner in which such temporary Global Securities can be exchanged
for definitive Securities of the series and whether such definitive
Securities will be Registered Securities, Bearer Securities or both and
will be in global form;
(11) the denominations in which Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which Bearer Securities of such
series, if any, shall be issuable if other than the denomination of $5,000;
(12) any Event of Default with respect to the Securities of such
series, if not set forth herein;
(13) the form of Securities of such series;
(14) the Person or Persons who shall be Security registrar for the
Securities of such series if other than as provided for in this Indenture,
and the place or places where the Security registrar for such series shall
be maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than as provided for in this Indenture;
(15) if warrants for Securities of any series are to be issued, the
form in which the warrants shall be issued, the circumstances under and the
manner in which the warrants may be exercised, any obligation of the
Company concerning any Securities underlying the warrants and any other
terms or conditions regarding the warrants and any Securities underlying
the warrants; and
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(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series and the coupons appertaining to Bearer
Securities of such series, if any, issued under this Indenture in all respects
shall be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or Maturity of the Securities of
such series. All Securities of the same series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and except as may otherwise be provided either in an
indenture supplemental hereto or a resolution of the Board of Directors.
Section 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series and the certificates of authentication
on the Securities shall be in substantially the form as shall be established as
provided in Section 2.01 with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may be determined consistently herewith by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If the form of Securities of any series or coupons
(including any Global Security) is established by action taken pursuant to a
resolution of the Board of Directors, a copy of an appropriate record of such
action shall be certified by the Secretary or any Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect as of the date of such certificate, and shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 2.04(b) or the authentication and delivery of such Securities.
Each Bearer Security and Coupon shall bear a legend substantially to the
following effect:
"Any United States Person will be subject to limitations under the
United States income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
The form of Trustee's certificate of authentication for all Securities
shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK, as Trustee
by
--------------------------------------------
Authorized Officer
Section 2.03. Securities in Global Form.
(a) If Securities of a series are issuable in whole or in part in global
form, as specified in the manner contemplated by Section 2.01, then,
notwithstanding the provisions of clause (11) of Section 2.01 or Section 2.04,
such Global Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding
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Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby from time to time may be reduced to
reflect exchanges. Any endorsement of a Global Security to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon instructions given by such Person
or Persons as shall be specified in such Global Security or in the Company Order
to be delivered to the Trustee pursuant to Section 2.04(b).
(b) The provisions of the last sentence of Section 2.05(b) shall apply to
any Securities represented by a Global Security if such Securities were never
issued and sold by the Company (whether because of failure of settlement or
otherwise) and the Company delivers to the Trustee the Global Security together
with written instructions with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 2.05(b).
(c) Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
Section 2.04. Denomination, Authentication and Dating of Securities.
(a) Securities of each series shall be issuable in such form and
denomination as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.02. In the absence of any
specification, as provided in Section 2.01, with respect to the Securities of
any series, the Registered Securities of such series, if any, shall be issuable
in denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, if any, shall be issuable in the denomination of
$5,000. Each Registered Security shall be dated as of the date of its
authentication. Each Bearer Security shall be dated as of the date specified in
the manner contemplated by Section 2.01.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this
Article Two, the Trustee thereupon shall authenticate and deliver such
Securities in accordance with a Company Order; provided, however, that in
connection with its original issuance a Bearer Security may be delivered only
outside the United States and, except in the case of a temporary Global
Security, only if the Company or its agent shall have received from the person
entitled to receive the Bearer Security a Bearer Security Tax Certificate and
only if the Company has no reason to know that such certificate is false.
(c) To the extent authorized in or pursuant to a resolution of the Board
of Directors or established in an indenture supplemental hereto, such Company
Order may be electronically transmitted and may provide instructions as to
registration of holders, principal amounts, rates of interest, Stated Maturities
and other matters contemplated by such resolution of the Board of Directors or
supplemental indenture to be so instructed in respect thereof.
(d) In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and, subject to Section 5.01, shall be
fully protected in relying upon:
(i) A copy of the resolution or resolutions of the Board of Directors
in or pursuant to which the terms and form of the Securities were
established, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in
full force and effect as of the date of such certificate;
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(ii) an executed supplemental indenture, if any;
(iii) an Officers' Certificate delivered in accordance with Section
15.05; and
(iv) an Opinion of Counsel which shall state:
(A) that the form of such Securities and coupons, if any, has
been established by a supplemental indenture or by or pursuant to a
resolution of the Board of Directors in accordance with Sections 2.01
and 2.02 and in conformity with the provisions of this Indenture;
(B) that the terms of such Securities and coupons, if any, have
been established in accordance with Section 2.01 and in conformity
with the provisions of this Indenture;
(C) that such Securities, when authenticated and delivered by
the Trustee and issued (with coupons attached, if applicable) by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles;
(D) that all conditions precedent, if any, provided for in this
Indenture have been complied with; and
(E) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and coupons, if any,
have been complied with.
(e) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee, in
accordance with this Section 2.04 and the Company Order with respect to such
series, shall authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction.
(f) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.04 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors or trustees or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing holders.
(g) Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee a Company Order, Officers'
Certificate, resolution of the Board of Directors, supplemental indenture or
Opinion of Counsel otherwise required pursuant to Section 2.04(b) or Section
2.04(d) at or prior to the time of authentication of each Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of such
series to be
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issued. In such event, any subsequent request by the Company to the Trustee to
authenticate Securities of such Series upon original issuance shall constitute a
representation and warranty by the Company that, as of the date of such request,
the statements made in the Officers' Certificate or other certificates delivered
pursuant to Section 2.04(d) shall be true and correct as if made on such date. A
Company Order, Officers' Certificate, resolution of the Board of Directors or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in this Section 2.04(g) may provide that Securities that
are the subject thereof will be authenticated and delivered by the Trustee or
its agent on original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of persons designated in such Company
Order, supplemental indenture or resolution of the Board of Directors (any such
telephonic or electronic instructions to be promptly confirmed in writing by
such persons) and that such persons are authorized to determine, consistent with
such Company Order, supplemental indenture or resolution of the Board of
Directors, such terms and conditions of said Securities as are specified in such
Company Order, supplemental indenture or resolution of the Board of Directors.
(h) Each Depositary designated pursuant to clause (9) of Section 2.01 for
a Global Security in registered form, at the time of its designation and at all
times while it serves as Depositary, shall be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
Section 2.05. Execution of Securities.
(a) The Securities and the related coupons shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of its Chairman of
the Board, its Chief Executive Officer or its President or, in lieu thereof, of
any Senior Vice President or its Treasurer and attested by its Secretary, under
its corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). For the purpose of any such signature or
attestation, the Company may adopt and use the facsimile signature of any person
who has been or is or shall be such officer.
(b) No Security or attached coupon shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose unless such security
bears thereon a certificate of authentication substantially in the form set
forth in Section 2.02 manually executed by the authorized signatory of the
Trustee. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered under this Indenture. Except as permitted by
Section 2.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled. Notwithstanding the foregoing, if any Security or portions thereof
shall have been duly authenticated and delivered hereunder but never issued and
sold by the Company (whether because of failure of settlement or otherwise), and
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement stating that such
Security or portion thereof has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
(c) In case any officer of the Company whose manual or facsimile signature
appears on any of the Securities or coupons shall cease to be such officer
before the Securities or coupons so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Securities or
coupons nevertheless may be authenticated and delivered or disposed of as though
the person whose manual or facsimile signature appears on such Securities or
coupons had not ceased to be such officer
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of the Company; and any Security or coupon may bear the manual or facsimile
signature on behalf of the Company by such persons as, at the actual date of the
execution of such Security or coupon, shall be the proper officers of the
Company, although at the date of the execution of this Indenture any such person
was not such an officer.
Section 2.06. Exchange and Registration of Transfer of Securities.
(a) Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations and of like tenor and terms of the same series. Registered
Securities to be exchanged shall be surrendered at the office or agency to be
maintained by the Company pursuant to Section 3.02 in each Place of Payment for
such series of Registered Securities, and the Company shall execute and cause to
be registered, and the Trustee shall authenticate and deliver in exchange
therefor, the Registered Security or Securities which the Securityholder making
the exchange shall be entitled to receive. In no event may Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities.
(b) For each series of Registered Securities, the Company shall cause to
be kept in at least one such office or agency a Security register (the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for registration of Registered Securities and
registration of transfer of Registered Securities as provided in this Article
Two. Each such Security Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times such Security Registers shall be open for inspection by the
Trustee. Upon due presentment for registration of transfer of any Registered
Security of any series at any such office or agency, the Company shall execute
and register and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of the same
series and of like tenor and terms for an equal aggregate principal amount.
Unless otherwise provided (pursuant to Section 2.01 or otherwise), the Company
initially appoints the Trustee, at the principal office of the Trustee, as a
Security registrar for each series of Registered Securities.
(c) All Registered Securities presented for registration of transfer or
for exchange or payment, if so required by the Company or the Trustee, shall be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
(d) To the extent specified in the manner provided by Section 2.01,
Registered Securities or Bearer Securities of any series may be issued in
exchange for Bearer Securities (except as otherwise specified in the manner
contemplated by Section 2.01 with respect to a Bearer Security in global form)
of the same series, of any authorized denomination and of like tenor and terms
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any office or agency specified in the manner provided by Section
2.01, with all unmatured coupons and all unpaid matured coupons thereto
appertaining. If the holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or unpaid matured coupon or coupons, such exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the amount
represented by such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to hold
harmless each of them and any Paying Agent. If thereafter the holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 3.02, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Whenever any Securities are so surrendered for
exchange, the
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Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the holder making the exchange is entitled to receive.
(e) If at any time the Depositary for the Global Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Securities of such series or if at any time the Depositary for
the Registered Securities of such series shall no longer be eligible under
Section 2.03 because it no longer is a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the Securities
of such series. If a successor Depositary for the Global Securities of such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 2.01(9) shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(f) The Company at any time and in its sole discretion may determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
(g) If specified by the Company pursuant to Section 2.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and deliver:
(i) to each Person specified by such Depositary a new Security or new
Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(ii) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to holders thereof.
(h) In any exchange provided for in Section 2.06(e), 2.06(f) or 2.06(g),
the Company will execute and the Trustee will authenticate and deliver
Securities (i) in definitive registered form in authorized denominations, if the
Securities of such series are issuable as Registered Securities, (ii) in
definitive bearer form in authorized denominations, with unmatured coupons
attached, if the Securities of such series are issuable as Bearer Securities or
(iii) as either Registered or Bearer Securities, if the Securities of such
series are issuable in either form; provided, however, that (A) no definitive
Bearer Security shall be delivered in exchange for a temporary Global Security
unless the Company or its agent shall have received from the person entitled to
receive the definitive Bearer Security a Bearer Security Tax Certificate, (B)
delivery of a Bearer Security shall occur only outside the United States and (C)
no
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definitive Bearer Security will be issued if the Company or the Trustee has
reason to know that such certificate is false.
(i) Upon the exchange of all of the Global Security for Securities in
certificated form, such Global Security shall be cancelled by the Trustee. The
exchange of any portion of a Global Security for Securities in certificated form
shall be subject to Section 2.03(a). Registered Securities issued in exchange
for all or part of a Global Security shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Registered Securities
to the persons in whose names such Securities are so registered. The Trustee
shall deliver Bearer Securities issued in exchange for all or part of a Global
Security to the persons, and in such authorized denominations, as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
(A) no definitive Bearer Security shall be delivered in exchange for all or part
of a temporary Global Security unless the Company or its agent shall have
received from the person entitled to receive the definitive Bearer Security a
Bearer Security Tax Certificate, (B) delivery of a Bearer Security shall occur
only outside the United States and (C) no definitive Bearer Security will be
issued if the Company or the Trustee has reason to know that any such
certificate is false.
(j) No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any such exchange or registration of transfer.
(k) The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any particular series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption under Section
10.03 and ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Registered
Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series, provided that such Registered Security
shall be surrendered immediately for redemption with written instruction for
payment consistent with the provisions of this Indenture.
(l) Notwithstanding anything herein to the contrary: the exchange of
Bearer Securities for Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; and neither the Company nor
the Trustee or any Security registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company could suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Order to the Security registrar.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
(a) In case any temporary or definitive Security of any series or any
related coupon shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its request and in the absence
of notice to the Company and the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Trustee shall authenticate and deliver a
new Security of the same series or related coupon, of equal aggregate principal
amount and of like tenor and terms bearing
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a number not contemporaneously outstanding, in exchange and substitution for the
mutilated Security or coupon, or in lieu of and in substitution for the Security
or coupon so destroyed, lost or stolen. In every case the applicant for a
substitute Security or coupon shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to hold each of them
harmless, and, in every case of destruction, loss or theft, the applicant also
shall furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security or coupon and of the
ownership of such Security or coupon.
(b) The Trustee may authenticate any such substitute Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substitute Security or coupon, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security or coupon which has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company, instead of issuing a
substitute Security or coupon, may pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to hold each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and the Trustee of the destruction, loss or theft of such
Security or coupon and of the ownership of such Security or coupon.
(c) Every substitute Security or coupon issued pursuant to the provisions
of this Section 2.07 by virtue of the fact that any Security or coupon is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security or coupon
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
coupons duly issued under this Indenture. All Securities or coupons shall be
held and owned by the holders upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or 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.
(d) Notwithstanding the foregoing, the payment of principal of and any
premium or interest on Bearer Securities, except as otherwise provided in
Section 3.02, shall be payable only at an office or an agency located outside of
the United States, and, with respect to any coupons, interest represented
thereby shall be payable only upon presentation and surrender of such coupons.
Section 2.08. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Securities of such series (and of like tenor and terms) in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the
Company. Such temporary securities may be in global form, representing all or
any part of the Outstanding Securities of such series.
(b) Unless otherwise provided pursuant to Section 2.01:
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(i) Except in the case of temporary Securities in global form, every
such temporary Security shall be authenticated by the Trustee in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver
to the Trustee definitive Securities of such series and thereupon any or
all temporary Securities of such series (accompanied, if applicable, by all
unmatured coupons and all unpaid matured coupons appertaining thereto) may
be surrendered in exchange therefor at the principal office of the Trustee,
and the Trustee shall authenticate and deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series of authorized denominations. Such exchange shall
be made at the Company's expense and without any charge to the holder.
Until so exchanged, the temporary Securities of any series in all respects
shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered under this Indenture.
Notwithstanding the foregoing, no Bearer Security shall be delivered in
exchange for a Registered Security, and a Bearer Security shall be
delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 2.06.
(ii) If Securities of any series are issued in temporary global form,
any such temporary Global Security, unless otherwise provided pursuant to
Section 2.01, shall be delivered to the Depositary for the benefit of
Euroclear and CEDEL for credit to the respective accounts of the
beneficial owners of such Securities or to such other accounts as they may
direct.
(iii) Any such temporary Global Security shall be exchangeable, on
the terms and in the manner set forth therein, in whole or in part, for an
equal aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor and terms as the
portions of such temporary Global Security to be exchanged. Any definitive
Bearer Securities shall be delivered in exchange for a portion of a
temporary Global Security only outside the United States and only upon
receipt by the Trustee from the Person entitled to receive such definitive
Bearer Security of a Bearer Security Tax Certificate.
(iv) Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall be entitled in all respects to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor and terms authenticated and delivered hereunder, except
that any interest payable with respect to a temporary Global Security will
be paid as specified therein.
Section 2.09. Payment of Interest; Interest Rights Preserved. Interest on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
holder of such coupon when due in accordance with the provisions of this
Indenture. Payment of interest on any Registered Security may be made as
provided in Section 3.02.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith shall cease to be payable to the Holder on
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the relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as provided
in this clause. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more that 15 nor
less than ten days prior to the date of the proposed payment and not less
than ten days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee promptly shall notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Security Holder at his address as it appears in the
Security Register, not less than ten days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been given as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following clause
(ii).
(ii) The Company may make payment of any Defaulted Interest on any
such Security in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of that
series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.09, each Security of
any series delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.
Subject to the limitations set forth in Section 3.02, the holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 3.02.
Section 2.10. Cancellation of Securities Paid, etc. All Securities and
coupons surrendered for the purpose of payment, exchange or registration of
transfer, if surrendered to the Company or any Paying Agent or any Security
registrar, shall be delivered to the Trustee and promptly cancelled by the
Trustee or, if surrendered to the Trustee, promptly 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 may destroy
cancelled Securities or coupons and will deliver a certificate of such
destruction to the Company.
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ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. Payment of Principal and Interest. The Company duly and
punctually will pay or cause to be paid the principal of and any premium and
interest on the Securities of each series at the places, at the respective times
and in the manner provided in this Indenture and in the Securities. Any interest
due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
Section 3.02. Offices for Notices and Payments, etc. So long as any
Securities of a series remain Outstanding, the Company will maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series (but, except as otherwise provided below, unless such
Place of Payment is located outside the United States, not Bearer Securities)
may be presented for payment, for registration of transfer and for exchange as
provided in this Indenture and where notices and demands to or upon the Company
in respect of the Securities or of this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain,
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for such series that is located outside the United States where
Securities of such series and the related coupons may be presented for payment.
The Company will give to the Trustee prompt written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
office of the Trustee, and the Company hereby initially appoints the Trustee its
agent to receive all such presentations and demands, except that Bearer
Securities of that series and the related coupons may be presented for payment
at the place specified for that purpose pursuant to Section 2.01(5). Unless
otherwise provided pursuant to Section 2.01, the Company hereby initially
designates as the Place of Payment for each series of Securities (other than
Bearer Securities of that series and the related coupons) the Borough of
Manhattan, The City of New York, New York and appoints the office or agency of
the Trustee as Paying Agent in such city. Notwithstanding any other provisions
to the contrary, the Company at its option may make payment of principal and any
premium and interest with respect to any Registered Security by check mailed to
the Person entitled thereto, as such address appears on the Security Register,
except that a holder of $10,000,000 or more in aggregate principal amount of
Securities of such series and of like tenor and terms will be entitled to
receive payments by wire transfer of immediately available funds if appropriate
wire transfer instructions shall have been received in writing by the Trustee
not later than ten Business Days prior to the applicable Interest Payment Date.
No payment of principal of or any premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that
payment of principal of and any premium and interest on any Bearer Security may
be made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium or interest at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 2.01 with
respect to any series of Securities, at the option of the holder of any Bearer
Security or related coupon payment may be made by mailing a check to an address
outside the United States or by transfer to an account maintained by the payee
with a bank located outside the United States.
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The Company also from time to time may designate one or more offices or
agencies (in or outside of such Place of Payment) where the Securities of one or
more series and any appurtenant coupons (subject to the preceding paragraph) may
be presented or surrendered for any and all such purposes, and from time to time
may rescind such designations. The Company will give prompt written notice to
the Trustee of any such designation and any change in the location of any such
office or agency.
Section 3.03. Provisions as to Paying Agent.
(a) The Company, with respect to the Securities of each series, prior to
each due date of principal of or any premium or interest on such Securities,
will deposit with the Paying Agent for such Securities a sum sufficient to pay
the principal, premium or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal, premium or interest.
If the Company shall appoint a Paying Agent other than the Trustee with respect
to the Securities of any series, the Company will notify the Trustee of its
making, or failure to make, any such payment; and the Company also shall cause
any 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 3.03, as follows:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or any premium or interest on such Securities
(whether such sums have been paid to it by the Company or by any other
obligor on such Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on such Securities) to make any payment of the
principal of or any premium or interest on such Securities when the same
shall be due and payable; and
(3) that it will forthwith pay to the Trustee, at any time during the
continuance of an Event of Default, upon the written request of the
Trustee, all sums so held by it as such agent.
(b) If the Company shall act as its own Paying Agent with respect to the
Securities of any series, on or before each due date of the principal of or any
premium or interest on the Securities of such series, it will set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal, premium or interest so becoming due and
will notify the Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor under such Securities) to make any payment
of the principal of or any premium or interest on such Securities when the same
shall become due and payable.
(c) Notwithstanding anything in this Section 3.03 to the contrary, the
Company, at any time, for the purpose of obtaining a satisfaction and discharge
of this Indenture or for any other reason, may pay or by Company Order direct
any Paying Agent to pay to the Trustee all sums held in trust by the Company or
any Paying Agent under this Indenture, such sums to be held by the Trustee upon
the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 3.03 to the contrary, the
agreement to hold sums in trust as provided in this Section 3.03 is subject to
Sections 13.03 and 13.04.
Section 3.04. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each calendar year commencing with the
first calendar year following the issuance of Securities of any series under
this Indenture, a written certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
covering the period from
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the date of issuance of such Securities to the end of the calendar year in which
such Securities were issued, in the case of the first such certificate, and
covering the preceding calendar year, in the case of each such subsequent
certificate, stating, as to each signer of such certificate, that:
(1) a review of the activities of the Company during the year and of
performance under this Indenture has been made under his supervision;
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its conditions and covenants under this Indenture
throughout such year, or, if there has been a default in the fulfillment of
any such condition or covenant, specifying each such default known to him
and the nature and status of such default; and
(3) such certificate sets forth as of the end of such year a list of
all Principal Constituent Banks.
Section 3.05. Notice of Certain Defaults. The Company will deliver to the
Trustee within five days after the occurrence thereof written notice of any
event which with the giving of notice or the lapse of time or both would be an
Event of Default under Section 4.01(c) or Section 4.01(d).
Section 3.06. Limitation on Certain Dispositions and on Merger and Sale of
Assets. Except as otherwise provided in Article Nine, the Company will not:
(a) sell, assign, transfer or otherwise dispose of any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of a Principal Constituent Bank, and will not
permit a Principal Constituent Bank to issue any shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, such Voting Stock if, in each case, after giving effect to any such
transaction, such Principal Constituent Bank would cease to be a Controlled
Subsidiary; or
(b) permit a Principal Constituent Bank to:
(i) merge or consolidate with any other corporation, unless the
surviving corporation is, or upon consummation of the merger or
consolidation will become, the Company or a Controlled Subsidiary; or
(ii) lease, sell or transfer all or substantially all its properties
and assets to any corporation or other Person, except to the Company or a
Controlled Subsidiary or a Person that, upon such lease, sale or transfer,
will become the Company or a Controlled Subsidiary.
Notwithstanding the foregoing, any such sale, assignment, transfer or other
disposition of securities, any such merger or consolidation or any such lease,
sale or transfer of properties and assets shall not be prohibited if required
(i) by any law or any rule, regulation or order of any governmental agency or
authority or (ii) as a condition imposed by any law or any rule, regulation or
order of any governmental agency or authority with respect to the acquisition by
the Company or any Controlled Subsidiary, directly or indirectly, through
purchase of securities or assets, or a merger, consolidation or otherwise, of
any Person, provided that after giving effect to such acquisition (A) such
Person will be a Controlled Subsidiary, (B) the Consolidated Net Banking Assets
of the Company will be at least equal to the Consolidated Net Banking Assets of
the Company prior thereto and (C) the Principal Constituent Bank will be a
Controlled Subsidiary.
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Section 3.07. Limitation on Creation of Liens. So long as any of the
Securities shall be Outstanding, the Company will not create, assume, incur or
suffer to be created, assumed or incurred or to exist any pledge, encumbrance or
lien, as security for indebtedness for borrowed money, upon any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of a Principal Constituent Bank if, treating
such pledge, encumbrance or lien as a transfer of the shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock subject thereto to the secured party, the Principal
Constituent Bank would not be a Controlled Subsidiary.
Section 3.08. Corporate Existence. Except as otherwise provided in
Article Nine, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Securityholders.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Events of Default. "Event of Default," when used with
respect to Securities of any series, means each of the following events unless
it is either inapplicable to a particular series or is specifically deleted or
modified in the supplemental indenture or resolution of the Board of Directors
under which such series of Securities is issued or in the form of Security for
such series:
(a) default in the payment of any installment of interest upon any of the
Securities of that series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of the principal of or any premium on any of the
Securities of that series as and when the same shall become due and payable at
their Stated Maturity, upon redemption, by declaration or otherwise;
(c) default in the payment of any sinking fund installment or analogous
obligation as and when the same shall become due and payable by the terms of the
Securities of that series;
(d) a default or event of default as defined or designated in any mortgage,
indenture, loan agreement or instrument under which there may be issued or
borrowed, or by which there is secured or evidenced, any indebtedness of the
Company (other than Securities of such series or indebtedness owed by the
Company to any Subsidiary) or any Subsidiary (other than indebtedness of any
Subsidiary owing to the Company or to another Subsidiary), whether such
indebtedness now exists or shall be created hereafter, shall happen and (i) not
less than $20,000,000 of such indebtedness shall be past due under such
mortgage, indenture, loan agreement or instrument or such default or event of
default shall result in not less than $20,000,000 of such indebtedness becoming
or being declared due and payable and (ii) such indebtedness or such
declaration, as the case may be, shall not have been discharged or rescinded or
annulled within 30 days after the date on which written notice thereof is given
to the Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Securities of that series
then Outstanding;
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(e) a final judgment or judgments or order or orders for the payment of
money in excess of $20,000,000 shall be entered against the Company or one or
more Principal Constituent Banks and within 90 days after entry thereof such
judgment or judgments or order or orders shall not have been discharged or the
execution thereof stayed pending appeal or within 90 days after the expiration
of any such stay such judgment or judgments or order or orders shall not have
been discharged;
(f) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Securities of
such series or in this Indenture (other than a covenant or agreement a default
in the performance of which or the breach of which is specifically provided for
elsewhere in this Section 4.01 or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than
such series), and continuance of such failure for a period of 90 days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company
and the Trustee by the holders of at least 25% in aggregate principal amount of
the Securities of such series at the time Outstanding;
(g) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company or a Principal Constituent Bank in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or a
Principal Constituent Bank or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(h) the Company or a Principal Constituent Bank shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or a Principal Constituent
Bank or for any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due or shall take any corporate action in furtherance of
any of the foregoing.
If an Event of Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, then and in each such case, unless the
principal of all the Securities of such series already shall have become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal amount of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable. This provision, however, is subject to the
condition that, at any time after such a declaration of acceleration, and before
any judgment or decree for the payment of the money due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults and rescind and
annul such declaration and its consequences, if:
(1) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay:
(A) all matured installments of interest on all the Securities of
that series and the principal of and any premium on any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest on overdue installments of
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interest (to the extent that payment of such interest is enforceable
under applicable law) and on such principal and premium at the rate
borne by the Securities of that series, to the date of such payment or
deposit); and
(B) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) any and all defaults with respect to Securities of that series
under this Indenture, other than the nonpayment of principal of and accrued
interest on Securities that shall have become due by acceleration, shall
have been cured or waived as provided in Section 4.07.
No such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee or any Securityholder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or any Securityholder, then
and in every such case the Company, the Trustee and such Securityholders,
subject to any determination in such proceeding, shall be restored respectively
to their several positions and rights under this Indenture, and all rights,
remedies and powers of the Company, the Trustee and such Securityholders shall
continue as though no such proceeding had been taken.
Section 4.02. Payment of Securities on Default; Suit Therefor.
(a) In case default shall be made in the payment of (i) any installment of
interest upon any of the Securities as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, or (ii)
the principal of or any premium on any of the Securities as and when the same
shall have become due and payable whether at Maturity of the Securities, by
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal, premium or interest, or any combination thereof, as the case may be,
with interest upon the overdue principal and premium and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, at the rate borne by the Securities; and, in addition,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents, attorneys and counsel.
(b) In case the Company 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 actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Securities and coupons and collect in the manner provided by law out of the
property of the Company or any other obligor on the Securities and coupons,
wherever situated, the money adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities and
coupons under Title 11 of the United States Code or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings
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relative to the Company or other obligor on the Securities and coupons, or to
the creditors or property of the Company or such other obliger, the Trustee,
irrespective of whether the principal of the Securities shall then be due and
payable as expressed in the Securities or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 4.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Securities, and, in case of any judicial proceedings,
(i) to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Securityholders allowed in such
judicial proceedings relative to the Company or any other obligor on the
Securities and coupons, its or their creditors, or its or their property, and
(ii) to collect and receive any money or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due it for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel and any other amounts due
the Trustee under Section 5.06. To the extent that such payment of reasonable
compensation, expenses and counsel fees out of the trust estate in any such
proceedings shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other property which the holders of the Securities and
coupons may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 4.02 shall be deemed to authorize the
Trustee to authorize or consent to or adopt on behalf of any Securityholder any
plan of reorganization or arrangement affecting the Securities or related
coupons or the rights of any Securityholder, or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Securityholders, vote for the
election of a trustee in bankruptcy or similar official and may be a member of
the creditors' committee.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Securities or related coupons, may be enforced by the Trustee
without the possession of any of the Securities or coupons, or the production
thereof in any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, shall be for the ratable benefit of the
holders of the Securities and related coupons.
Section 4.03. Application of Money Collected By Trustee. Any money
collected by the Trustee with respect to any series of Securities or related
coupons pursuant to Section 4.02 shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such money, upon
presentation of the several Securities of such series or coupons, or both, as
the case may be, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts then due the Trustee under
Section 5.06;
SECOND: In case the principal of the Outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest
on the Securities of that series in the order of the Maturity of the
installments of such interest, with interest (to the extent enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Securities of that series, such payments to be made ratably to
the persons entitled thereto; and
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THIRD: In case the principal of the Outstanding Securities of that
series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of that
series for principal and any premium and interest, with interest on the
overdue principal and any premium and (to the extent enforceable under
applicable law) upon overdue installments of interest at the rate borne by
the Securities of that series; and in case such money shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of
that series, then to the payment of such principal and any premium and
interest without preference or priority of principal over interest, or of
interest over principal, or of any premium over principal or interest, or
of principal or interest over any premium or of any installment of interest
over any other installment of interest, or of any Security of that series
over any other Security of that series, or of any coupon related to a
Security of a series over any other coupon related to a Security of the
same series, ratably to the aggregate of such principal and any premium and
accrued and unpaid interest.
Section 4.04. Proceedings by Securityholders. No holder of any Security
of any series or any related coupon shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture, unless such holder previously shall have given to
the Trustee written notice of default and of the continuance thereof, as
provided in Section 4.01, and unless also (i) the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee under this Indenture and shall have
offered to the Trustee such reasonable indemnity as the Trustee may require
against the costs, expenses and liabilities to be incurred in compliance with
such request, (ii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and (iii) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
holders of a majority in principal amount of the Outstanding Securities of that
series; it being understood and intended, and being expressly covenanted by each
Person who acquires and holds a Security or related coupon with every other such
Person, that no one or more holders of Securities of any series shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder of
such Securities or coupons, 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 provided in this Section 4.04 and for the equal,
ratable and common benefit of all holders of Securities and coupons of such
series.
Notwithstanding any other provision of this Indenture, however, the right
of any holder of any Security to receive payment of the principal of and any
premium and interest on such Security on or after the respective Stated
Maturities, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company, shall not be impaired or
affected without the consent of such holder.
Section 4.05. Proceedings by Trustee. In case of an Event of Default
under this Indenture, the Trustee in its discretion may proceed to protect and
enforce its rights and the rights of the Securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, either by suit in equity or by action at law or by
proceeding 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 proper remedy or
legal or equitable right vested in the Trustee by this Indenture or by law.
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Section 4.06. Remedies Cumulative and Continuing; Delay or Omission Not
Waiver. All rights, powers and remedies conferred upon or reserved to the
Trustee or to the Securityholders, to the extent permitted by law, shall be
deemed cumulative and not exclusive of any thereof or of any other rights,
powers and remedies available to the Trustee or the holders of the Securities
and related coupons, now or hereafter existing, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture; and no delay or omission of the Trustee
or of any holder of any of the Securities or related coupons to exercise any
such right, power or remedy shall impair any such right, power or remedy, or
shall be construed to be a waiver of any default or an acquiescence in such
default; and subject to the provisions of Section 4.04, every power and remedy
conferred upon or reserved to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders. The assertion of any right, power or remedy
shall not prevent the concurrent assertion of any other right, power or remedy.
Section 4.07. Direction of Proceedings and Xxxxxx of Defaults by Majority
of Securityholders.
(a) The holders of a majority in aggregate principal amount of the
Securities of all series affected (voting as one class) at the time Outstanding
determined in accordance with Section 6.04 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;
provided, however, that (i) such direction may not be in conflict with law or
this Indenture or expose the Trustee to personal liability or be unduly
prejudicial to the holders of the Securities and related coupons not joining in
the direction, it being understood (subject to Section 6.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such holders, and (ii) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with this Indenture
and such direction.
(b) Prior to any declaration that the principal of the Outstanding
Securities of any series is due and payable, the holders of a majority in
aggregate principal amount of the Securities of that series at the time
Outstanding on behalf of the holders of all of the Securities of that series may
waive any past default or Event of Default under this Indenture and its
consequences except a default under a covenant in this Indenture that, pursuant
to Section 8.02, cannot be modified without the consent of each holder of a
Security of the series affected thereby. Upon any such waiver the Company, the
Trustee and the holders of the Securities of that series and the related coupons
shall be restored to their former positions and rights under this Indenture,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default under this Indenture shall have been waived as permitted by
this Section 4.07, such default or Event of Default, for all purposes of the
Securities, the related coupons and this Indenture, shall be deemed to have been
cured and to be not continuing.
Section 4.08. Notice of Defaults. The Trustee, within 90 days after the
occurrence of a default with respect to Securities of any series, shall mail to
all Securityholders of that series, at their addresses shown on the Security
Register, notice of all such defaults known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"defaults" for the purpose of this Section 4.08 being hereby defined to mean the
events which constitute or after notice or lapse of time or both would
constitute an Event of Default); and provided that, except in the case of
default in the payment of the principal of or any premium or interest on any of
the Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Securityholders of that
series.
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Section 4.09. 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 in its discretion may 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 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 in its discretion may 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; provided, however, that the provisions of this Section 4.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of that series, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or any premium or interest on any Security on or after the
respective Stated Maturities (or, in the case of redemption or repayment, on or
after the redemption date or repayment date).
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of Trustee. In case an Event of
Default has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provisions of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
its own willful misconduct or any action or failure to act taken or omitted by
it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(1) the duties and obligations of the Trustee 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
(2) 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 certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions that
by any provisions of this Indenture 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 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 of not less than a majority in principal amount of the Securities of any
series at the time Outstanding (determined as provided in Section 6.04)
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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 it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section 5.01.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
Section 5.02. Reliance on Documents, Opinions, etc. Subject to the
applicable provisions of the Trust Indenture Act and in furtherance thereof and
subject to the provisions of Section 5.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture 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 Company mentioned herein
shall be sufficiently evidenced by an Officer's 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 Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or omitted by it under this Indenture in good faith and in accordance with such
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
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 security or indemnity
reasonable to it against the costs, expenses and liabilities that may 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 or
rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books and records of the
Company to the extent reasonably necessary to verify such facts or matters;
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(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
with due care under this Indenture;
(h) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(i) the permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty; and
(j) except for (i) a default under Sections 5.01(a), (b) or (c) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or Event of Default unless specifically
notified in writing of such event by the Company or any Holder of the
Securities then outstanding; as used herein, the term "actual knowledge" means
the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
Section 5.03. No Responsibility for Recitals, etc. The recitals contained
in this Indenture and in the Securities (except in the Trustee's certificate of
authentication) and in any coupons shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or the coupons. The Trustee shall not be
accountable for the use or application by the Company of any Securities or the
proceeds of any Securities authenticated and delivered by the Trustee.
Section 5.04. Trustee, Paying Agents or Registrar May Own Securities.
Subject to the applicable provisions of the Trust Indenture Act, the Trustee or
any Paying Agent or Security registrar, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have
if it were not Trustee, Paying Agent or Security registrar.
Section 5.05. Money to be Held in Trust. Subject to the provisions of
Sections 13.03 and 13.04, all money received by the Trustee, until used or
applied as herein provided, shall be held in trust for the purposes for which it
was received. Money held by the Trustee need not be segregated from other funds
except as provided by law. The Trustee shall be under no liability for interest
on any money received by it under this Indenture, provided that the Trustee pays
to the Persons entitled thereto all such money when due and payable.
Section 5.06. Compensation and Expenses of Trustee. The Company will pay
to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it under this Indenture
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense, disbursement or advance as
may be attributable to its negligence or willful misconduct. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or willful misconduct on
the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of
defending itself or investigating against any claim of liability in connection
with the exercise or performance of any of its powers under this Indenture,
including the costs and expenses of collection. The obligations of the Company
under this Section 5.06 shall constitute additional indebtedness under this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) and interest on particular
Securities, and the Securities are hereby subordinate to such prior claim. When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Article Five hereof, the expenses (including reasonable
fees and expenses of its counsel) and the compensation for the services in
connection therewith are intended to constitute expense of administration under
any applicable bankruptcy law.
Section 5.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 5.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action under this
Indenture, such matter (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, may be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken or omitted by it under the provisions of this Indenture upon
the faith of such Officers' Certificate.
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Section 5.08. Eligibility of Trustee. The Trustee under this Indenture
shall at all times be a corporation organized and doing business under the laws
of the United States or any State thereof or of the District of Columbia (or a
corporation or other person permitted to act as Trustee by the Commission)
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority. 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 5.08 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 5.08, the Trustee shall resign immediately in the manner and with the
effect specified in Section 5.09. Neither the Company nor any person directly
or indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee under this Indenture.
Section 5.09. Resignation or Removal of Trustee.
(a) The Trustee may resign at any time by giving written notice of such
resignation to the Company, by mailing notice of such resignation to the holders
of Registered Securities at their addresses as they shall appear on the Security
Register and, if any Bearer Securities are Outstanding, by publishing notice of
such resignation in a newspaper of general circulation, in each place of payment
for such Bearer Securities, customarily published at least once a day for at
least five days in each calendar week.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.08 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or a 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 Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee (with written notice of such removal mailed to the
holders of Registered Securities at their address as they shall appear on the
Security Register), or, subject to the provisions of Section 4.09, any
Securityholder who has been a bona fide holder of a Security or Securities 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.
(c) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company
promptly shall appoint a successor Trustee by a Company Order authorized by the
Board of Directors, one copy of which instrument shall be delivered to the
retiring Trustee and one copy to the successor Trustee. If, within one year
after such
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resignation, removal or incapability or the occurrence of such vacancy, a
successor Trustee shall be appointed by the holders of a majority in principal
amount of the Securities (voting as a single class) at the time Outstanding by
instrument or instruments delivered to the Company and the retiring Trustee, the
successor Trustee so appointed, forthwith upon its acceptance of such
appointment, shall become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Securityholders and accepted appointment in the
manner provided in Section 5.10 within 60 days after notice of the resignation
or removal of the Trustee is mailed to the Securityholders, 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 for at least six months, subject to the provisions of
Section 4.09, on behalf of himself and all others similarly situated, may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(d) The holders of a majority in aggregate principal amount of the
Securities (voting as a single class) at the time Outstanding at any time may
remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 5.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10. Any resignation of the Trustee shall become effective only upon the
appointment of a successor Xxxxxxx and upon the acceptance of appointment by the
successor Trustee as provided in Section 5.10.
Section 5.10. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 5.09 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment under this Indenture, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor under this Indenture,
with like effect as if originally named as Trustee in this Indenture; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 5.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
request of any such successor Trustee, the Company 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,
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06.
No successor Trustee shall accept appointment as provided in this Section
5.10 unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 310(a) of the Trust Indenture Act and
eligible under the provisions of Section 5.08.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 5.10, the Company shall mail notice of the succession of such Trustee
under this Indenture to the holders of Registered Securities at their addresses
as they shall appear on the Security Register. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Company.
Section 5.11. Succession by Xxxxxx, etc. 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,
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conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all corporate trust business of
the Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties to this Indenture provided such corporation shall be qualified under the
provisions of Section 310(a) of the Trust Indenture Act and eligible under the
provisions of Section 5.08.
In case at the time such successor Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered, any such successor 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 shall not have
been authenticated, any successor Trustee may authenticate such Securities
either in the name of any predecessor Trustee under this Indenture or in the
name of the successor Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
Section 6.01. Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined in such action may
be evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing,
(ii) by the record of the holders of Securities voting in favor of such action
at any meeting of Securityholders duly called and held in accordance with the
provisions of this Article Six or (iii) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. The
Company may set a record date for purposes of determining the identity of
holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall be the later of ten
days prior to the first solicitation of such consent or the date of the most
recent list of holders furnished prior to such solicitation pursuant to the
provisions of Section 312(a) of the Trust Indenture Act. If a record date is
fixed, those persons who were holders of Securities at such record date (or
their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be holders after such record
date. No such vote or consent shall be valid or effective if such vote occurs
or such consent is obtained more than 120 days after such record date.
Section 6.02. Proof of Execution by Securityholders.
(a) Subject to the provisions of Sections 5.01, 5.02 and 7.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
(b) The ownership of Registered Securities of any series shall be proved by
the Security Register of such Securities or by a certificate of the Security
registrar of such series.
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(c) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (i) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section 6.02(c).
(d) The record of any Securityholders' meeting shall be proved in the
manner provided in Section 7.07.
Section 6.03. Who Are Deemed Absolute Owners. Prior to due presentation
of a Registered Security for registration of transfer, the Company, the Trustee,
any Paying Agent and any Security registrar may treat the Person in whose name
such Registered Security is registered as owner of such Registered Security for
the purpose of receiving payment of principal of and any premium and (subject to
Section 2.09) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security is overdue and
notwithstanding any notation of ownership or other writing on such Registered
Security made by anyone other than the Company or any Security registrar, and
neither the Company, the Trustee, any Paying Agent nor any Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any such holder as shown in the Security Register, 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 money payable upon any such Registered Security.
The Company, the Trustee, any Paying Agent and any Security registrar may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon is overdue, and neither the
Company, the Trustee, any Paying Agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
bearer shall be valid and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for money payable upon any such Bearer
Security.
None of the Company, the Trustee, any Paying Agent or the Security
registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 6.04. Company Owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent, waiver or other action under this
Indenture, Securities that are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or
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indirect common control with the Company or any other obligor on the Securities
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination; provided, however, that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Securities that the Trustee knows are so
owned shall be so disregarded.
Section 6.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities of any or all series 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 in the Securities the
holders of which have consented to such action, by filing written notice with
the Trustee at the principal office of the Trustee and upon proof of holding as
provided in Section 6.02, may revoke such action so far as concerns such
Security. Except as provided in this Section 6.05 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, irrespective of whether or not
any notation in regard thereto is made upon such Security or any Security issued
in exchange or substitution for such Security.
ARTICLE SEVEN
SECURITYHOLDERS' MEETINGS
Section 7.01. Purposes of Meetings. A meeting of Securityholders of any
or all series may be called at any time and from time to time pursuant to the
provisions of this Article Seven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
under this Indenture and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions
of Article Four;
(2) to remove the Trustee and nominate a successor Trustee pursuant
to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 8.02;
or
(4) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
Section 7.02. Call of Meetings by Trustee. The Trustee at any time may
call a meeting of Securityholders of any or all series to take any action
specified in Section 7.01, to be held at such time and at such place in The City
of New York for Registered Securities and the City of London, England for Bearer
Securities, as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to
holders, if any, of Registered Securities of each series affected at their
addresses as they shall appear on the Security Register, and shall be provided
to holders, if any, of Bearer Securities of each series affected by publication
thereof in a newspaper of general circulation, in each Place of Payment for each
such series, customarily published at least once a day for at least five days in
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each calendar week. Such notice to holders of Registered Securities shall be
mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting. Such notice to holders of Bearer Securities shall be made by the
required publication on at least two dates, the first such publication to be not
more than 90 days and the second such publication to be not less than 20 days
prior to the date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the holders
of all Securities then Outstanding of each series affected are present in person
or by proxy or if notice is waived before or after the meeting by the holders of
all Outstanding Securities of each series affected, and if the Company and the
Trustee are either present by duly authorized representatives or, before or
after the meeting, have waived notice.
Section 7.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, that may be affected by
the action proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholders of any or all series, as the case may be, that may be
so affected, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed or
published (as appropriate under Section 7.02) the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in the city designated in Section 7.02, as
the case may be, for such meeting and may call such meeting to take any action
authorized in Section 7.01, by mailing or publishing notice of such meeting as
provided in Section 7.02.
Section 7.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders of any series a person shall (i) be a holder of one
or more Securities of such series as set forth in the Security Register for such
series or (ii) be a person appointed by an instrument in writing as proxy by a
holder of one or more Securities of such series, subject to the provisions of
Section 6.02. The only persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 7.05. Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
(b) The Trustee, by an instrument in writing, shall appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 7.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, in like
manner shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
(c) Subject to the provisions of Section 6.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities.
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(d) No vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Securities held by him or instruments in writing duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
7.02 or 7.03 may be adjourned from time to time by a majority of those present
and the meeting may be held as so adjourned without further notice.
Section 7.06. Quorum. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities affected by the action proposed
to be taken shall constitute a quorum for a meeting of such Securityholders. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting, if convened at the request of holders of Securities, shall
be dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than ten days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 7.02,
except that such notice need be given only once not less than five days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities affected
by the action proposed to be taken which shall constitute a quorum.
Section 7.07. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken at such meeting and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
such notice was mailed or published as provided in Section 7.02 or 7.03. The
record shall show the principal amount of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters stated in such record.
Section 7.08. No Delay of Rights by Meeting. Nothing in this Article
Seven shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders or any rights expressly or impliedly conferred
under this Article Seven to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders under any of the provisions of this Indenture or of the
Securities.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee from time to time and at any time may enter into an indenture or
indentures supplemental to this Indenture for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumptions by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Nine;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of any series of
the Securities or coupons as the Board of Directors and the Trustee shall
consider to be for the protection of the holders of such Securities or coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies set
forth in this Indenture; provided, however, that in respect of any such
additional covenant, restriction or condition 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 default or may limit the remedies
available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this Indenture
or in any supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture that shall not adversely
affect the interests of the holders of the Securities or any related coupons;
(d) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(e) to add to, change or eliminate any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal or any premium on
Registered Securities or of principal or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the holders of Securities of any series or any related coupons;
(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; provided, however,
that such action shall not adversely affect the interests of the holders of the
Securities of any series;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America;
(h) to provide for the documentation necessary for the issuance of
Securities at an issue price lower than the principal amount thereof, including
to provide that upon the redemption or acceleration
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of the Maturity thereof an amount less than the principal amount thereof shall
become due and payable and that such amount shall be used to determine the
relative voting rights of the holders thereof; or
(i) to conform the Indenture to the provisions of the Trust Indenture Act
as then in effect.
The Trustee hereby is authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be contained in such supplemental indenture and to
accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any
provisions of Section 8.02.
Section 8.02. Supplemental Indentures with Consent of Securityholders of a
Series. With the consent (evidenced as provided in Section 6.01) of the holders
of not less than a majority in aggregate principal amount of the Securities at
the time Outstanding of each series affected by such supplemental indenture or
indentures, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that without the consent of
the holder of each Security affected thereby no such supplemental indenture
shall: (a) change the Stated Maturity of the principal of or any premium or any
installment of interest on, any Security, or reduce the principal amount of any
Security or any premium or interest on any Security, or reduce the amount of
principal payable upon acceleration of the Maturity of any Original Issue
Discount Security, or change any Place of Payment where, or the coin or currency
in which, any Security or any premium or interest on any Security is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after its Stated Maturity; (b) reduce the percentage in principal amount of
Securities the consent of whose holders is required for any such supplemental
indenture or the consent of whose holders is required for any waiver of
compliance with certain provision of this Indenture or certain defaults under
this Indenture and their consequences provided for in this Indenture; or (c)
modify the provisions of Section 4.01 providing for the rescinding and annulment
of a declaration accelerating the Maturity of the Securities of any series, or
any of the provision of this Section 8.02 or Section 4.07(b), except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders of such
series as aforesaid, the Trustee shall join with the Company 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 8.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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Section 8.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eight shall comply with the Trust Indenture Act as then in effect.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Eight, this Indenture shall be and be deemed to be modified and
amended in accordance with such supplemental indenture and the respective
rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of the series of
Securities affected thereafter shall be determined, exercised and enforced under
this Indenture 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 8.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eight may bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series and any related coupons
so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange, as provided in Section 2.06, for the Outstanding
Securities of such series and any related coupons, upon surrender of such
Outstanding Securities of such series and any related coupons.
Section 8.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 5.01 and
5.02, shall be entitled to 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 requirements of this Article Eight.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 9.01. Company May Consolidate, etc., on Certain Terms. The Company
shall not consolidate with or merge into any other corporation or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer or
which leases the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and expressly shall assume, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on the
Securities, according to their terms, and the performance of every covenant
of this Indenture and in such series on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease
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and supplemental indenture comply with this Article Nine and that all
conditions precedent provided for in this Indenture relating to such
transaction have been complied with.
Section 9.02. Successor Corporation Substituted. Upon any consolidation by
the Company with or merger by the Company into any other corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 9.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company in this Indenture, and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities of each series and any related
coupons.
Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession, any of or
all of the Securities of each series issuable under this Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of upon the
Company Order, and subject to all the terms, conditions and limitations in this
Indenture, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee on
its behalf for that purpose. All the Securities so issued shall have in all
respects 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 such Securities had been issued at the date of the execution of
this Indenture.
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 10.01. Applicability of Article. Securities of any series that are
redeemable before their Stated Maturity shall be redeemable only in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.01 for Securities of any series) in accordance with this Article Ten.
Section 10.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Company Order. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
shall notify the Trustee of such Redemption Date, of the tenor and terms of the
Securities of such series to be redeemed and of the principal amount of such
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 10.03. Selection by Trustee of Securities to be Redeemed. If less
than all the Securities of any series of like tenor and terms specified by the
Company are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and of such tenor and terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denominations for such
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Securities or any integral multiple thereof) of the principal amount of such
Registered Securities or such Bearer Securities or a denomination larger than
the minimum authorized denomination for such Registered Securities or such
Bearer Securities.
The Trustee promptly shall notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 10.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 7.02 not less than 30 nor more than 60 days prior
to the Redemption Date. All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after such date;
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons, if any, appertaining
thereto maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price;
(6) that Bearer Securities may be surrendered for payment only at
such place or places that are outside the United States, except as provided
in Section 3.02; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 10.05. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 3.04(b)) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be the same date as the
Stated Maturity of an installment of interest thereon) accrued interest on, all
the Securities that are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 3.02, unless otherwise specified as contemplated by Section 2.01.
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Section 10.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall become
due and payable, on the Redemption Date, at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that:
(i) installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 3.02); and (ii)
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant record date for the payment of such interest according to the terms of
such Securities.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to hold each of
them and any Paying Agent harmless. If thereafter the holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such holder shall be entitled to receive the amount so deducted on
account of such coupon without interest thereon; provided, however, that
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside of the United
States except as otherwise provided in Section 3.02.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or related coupon.
Section 10.07. Registered Securities Redeemed in Part. Any Registered
Security that is to be redeemed only in part shall be surrendered at a Place of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the holder of such Security without service
charge, a new Registered Security or new Registered Securities of the same
series and of like tenor and terms, of any authorized denomination as requested
by such holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
Section 11.02. Satisfaction of Sinking Fund Payments with Securities. If
provided for by the terms of Securities of any series, the Company
(1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(2) may apply as a credit Securities of a series that have been
repurchased at the option of a holder or redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the
terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund, and the amount of such sinking fund payment shall be reduced accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment of that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivery and crediting Securities of that series pursuant to Section 11.02 and
also will deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 10.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.06 and 10.07.
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01. Terms Set Forth in the Securities. Securities of any series
which are repayable at the option of the holders thereof before their Stated
Maturity shall be repaid in accordance with the terms set forth in such
Securities.
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ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Securities of any series and any
related coupons theretofore authenticated (other than any Securities of such
series and any related coupons that shall have been mutilated, destroyed, lost
or stolen and in lieu of or in substitution for which other Securities or
coupons shall have been authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities of any series and any related coupons not
theretofore cancelled or 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 the
Company shall deposit with the Trustee, in trust, funds (which thereupon shall
become immediately due and payable to the holders of Securities or coupons)
sufficient to pay upon Stated Maturity, redemption or repayment at the option of
a holder all the Securities of such series and related coupons (other than any
Securities of such series and related coupons that shall have been mutilated,
destroyed, lost or stolen and that have been replaced or paid as provided in
Section 2.06) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and any premium and interest due or to become
due prior to such Stated Maturity, Redemption Date or date of repayment, as the
case may be, but excluding, however, the amount of any money for the payment of
principal of or any premium or interest on the Securities
(1) theretofore deposited with the Trustee and repaid by the Trustee
to the Company in accordance with the provisions of Section 13.04, or
(2) paid to any State or the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company also
shall pay or cause to be paid all other sums payable under this Indenture
by the Company
then this Indenture shall cease to be of further effect with respect to
Securities of such series and any related coupons, and the Trustee, on demand of
the Company accompanied by an Officer's Certificate and an Opinion of Counsel
as required by Section 15.05 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of such series and any related coupons.
The obligations of the Company to the Trustee under Section 5.06 shall survive
the termination of this Indenture.
The Trustee shall notify the Securityholders of such series, at the expense
of the Company, of the immediate availability of the amount referred to in
clause (b) of this Section 13.01 by mailing a notice, first class postage
prepaid, to the holders of Securities of such series at their addresses as they
appear on the Security Register.
Section 13.02. Deposited Money to be Held in Trust by Trustee. Subject to
Section 13.04, all money deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent, other than as to Bearer Securities, except as provided in Section 3.02),
to the holders of the particular Securities and related coupons for the payment
of which such money has been deposited with the Trustee, of all sums due and to
become due thereon for principal and any premium and interest.
Section 13.03. Paying Agent to Repay Money Held. Upon the satisfaction
and discharge of this Indenture all money then held by any Paying Agent of the
Securities (other than the Trustee), upon
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demand of the Company, shall 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 money.
Section 13.04. Return of Unclaimed Money. Any money deposited with or
paid to the Trustee or any Paying Agent for payment of the principal of or any
premium or interest on Securities of any series, or then held by the Company in
trust for the payment of the principal of or any premium or interest on
Securities of any series, and not applied but remaining unclaimed by the holders
of Securities of that series for two years after the date upon which the
principal or any premium or interest on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand or, if then held by the Company, shall be discharged from such trust,
and all liability of the Trustee thereupon shall cease; and the holder of any of
such Securities thereafter, as an unsecured general creditor, shall look only to
the Company for payment of such Securities, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, thereupon shall cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
at the expense of the Company, in the case of Registered Securities or Bearer
Securities, may cause to be published once, in a newspaper of general
circulation in each Place of Payment for such series customarily published on
each Business Day (whether or not published on Saturdays, Sundays or holidays)
or, in the case of Registered Securities, mail to each such holder, or both in
the case of Registered Securities, notice that such money remains unclaimed and
that, after a date specified in such notice, which shall not be less than 30
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 13.05. Discharge of Indenture as to Certain Series of Securities.
(a) If this Section 13.05 is specified in the manner contemplated by
Section 2.01 to be applicable to the Securities of any series, the Company shall
be deemed to have paid and discharged the entire indebtedness on all the
Securities of any such series at the time Outstanding and, upon Company Order,
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction, discharge and defeasance of such indebtedness, when:
(1) either:
(A) with respect to all Securities of such series at the time
Outstanding, the Company shall have deposited or caused to be
deposited irrevocably with the Trustee for such series as trust funds
in trust, U.S. dollars, U.S. Government Obligations or a combination
thereof, in an amount that through the payment of interest and
principal and premium in respect thereof in accordance with their
terms will provide (without any reinvestment of such interest or
principal), not later than one Business Day before the due date of any
payment in respect of the Securities for such series, money in an
amount sufficient (in the case of a deposit including any U.S.
Government Obligations, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee at or prior to the time of such
deposit) to pay and discharge each installment of principal of
(including any mandatory sinking fund payments), and any premium and
interest on, the Outstanding Securities of such series on the dates
such installments of principal and any premium and interest are due or
upon the Stated Maturity, Redemption Date or repayment at the option
of a holder of such series, as applicable; or
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(B) the Company properly has fulfilled such other means of
satisfaction and discharge as is specified, in the manner contemplated
by Section 2.01, to be applicable to the Securities of such series;
(2) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit as evidenced to the Trustee in an
Officers' Certificate delivered concurrently with such deposit to the
Trustee;
(3) the Company shall have paid or caused to be paid all other sums
payable with respect to the Securities of such series at the time
Outstanding;
(4) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, or the
Company has obtained a waiver of any such breach, violation or default;
(5) unless otherwise specified in the manner contemplated by Section
2.01, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 13.05 and will
be subject to Federal income tax on the same amount and in the manner and
at the same times as would have been the case if such option had not been
exercised and, in the case of the Securities of such series being
discharged, accompanied by a ruling to that effect received from or
published by the Internal Revenue Service; and
(6) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction, discharge and
defeasance of the entire indebtedness on all Securities of any such series
at the time Outstanding have been complied with.
(b) "U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America which in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof.
(c) Upon the satisfaction of the conditions set forth in this Section 13.05
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Securities pursuant to Section 2.07 of Securities of
such series expressly provided for herein or in the form of Security of such
series); provided, however, that the Company shall not be discharged from any
payment obligations in respect of Securities of such series which are deemed not
to be Outstanding under clause (c) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law.
Section 13.06. Repayment to Company of Deposits Made Pursuant to Section
13.05. After the payment in full of the entire indebtedness of a series of
Securities with respect to which a deposit has
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been made with the Trustee pursuant to Section 13.05, the Trustee and any Paying
Agent for such series upon Company Order promptly shall return to the Company
any money or U.S. Government Obligations held by them that are not required for
the payment of the principal of and any premium and interest on the Securities
of such series.
Section 13.07. Deposits Irrevocable. Any deposits with the Trustee
referred to in Sections 13.01 and 13.05(a)(1)(A) shall be irrevocable. If any
Securities of a series with respect to which a deposit has been made pursuant to
Sections 13.01 and 13.05(a)(1)(A) at the time Outstanding are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company.
Section 13.08. Reinstatement. If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 13.01 or 13.05 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.01 or 13.05 until such time as the Trustee is permitted
to apply all such money or U.S. Government Obligations in accordance with
Section 13.01 or 13.05.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or any premium or interest on any
Security, or for any claim based on any Security or coupon or otherwise in
respect of any Security or coupon, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any Security, or
because of the creation of any indebtedness represented by any Security or
coupon, shall be had against any incorporator, stockholder, officer or director,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements contained in this Indenture by
the Company shall bind its successors and assigns whether so expressed or not.
Section 15.02. Official Acts by Successor Corporation. Any act or
proceeding by any provisions of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board,
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committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
Section 15.03. Addresses for Notices, etc. Any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to Mercantile Bancorporation Inc., Attention: Treasurer, P.O.
Box 524, St. Louis, Missouri 63166-0524, with a copy to it at P.O. Box 524, St.
Louis, Missouri 63166-0524, Attention: General Counsel. Any notice, direction,
request or demand by any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or made in
writing at the principal office of the Trustee, Attention: Corporate Trust
Administration.
Section 15.04. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 15.05. Evidence of Compliance with Conditions Precedent. Upon any
application or request by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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 (other than certificates provided pursuant to Section 3.04,
which certificates shall comply with the requirements of Section 3.04) shall
include: (i) a statement that the person making such certificate or opinion has
read such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinion
contained in such certificate or opinion are based; (iii) 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 informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
The provisions of this Section 15.05 are in furtherance of and subject to
Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
Section 15.06. Legal Holidays. Unless otherwise specified in the manner
contemplated by Section 2.01, in any case where the Stated Maturity of principal
of or any premium or interest on the Securities will not be a Business Day,
payment of such principal, premium or interest need not be made on such date but
may be made on the next following Business Day with the same force and effect as
if made on the Stated Maturity and, if such principal, premium or interest is
duly paid on such next following Business Day, no interest shall accrue for the
period from and after such Stated Maturity to such next following Business Day.
Section 15.07. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
provision of the Trust Indenture Act, such required provision shall control. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the modified or excluded provision of this
Indenture, as the case may be, shall be deemed to apply.
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Section 15.08. No Security Interest Created. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its Subsidiaries is located.
Section 15.09. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any person, other than
the parties to this Indenture, any Paying Agent, any Security registrar and
their successors under this Indenture and the holders of Securities or coupons
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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MERCANTILE BANCORPORATION INC.
By:
-----------------------------
[Name]
[Title]
[SEAL]
Attest:
----------------------
Title:
XXXXXX TRUST AND SAVINGS BANK
By:
-----------------------------
[Name]
[Title]
[SEAL]
Attest:
----------------------
Title:
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STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ___________________, 199_, before me personally came
_____________, to me known, who, being by me duly sworn did depose and say that
he resides at _____________________; that he is the ____________________________
of MERCANTILE BANCORPORATION 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 the authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______________, 199_, before me personally came
_______________________________, to me known, who, being by me duly sworn did
depose and say that he resides at ____________________________________; that he
is a Vice President of XXXXXX TRUST AND SAVINGS BANK, 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 the authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
-----------------------------------------------
Notary Public
[NOTARIAL SEAL]
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