EXHIBIT 4.1
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
Issuer
and
BANK ONE TRUST COMPANY, N.A.
Trustee
Indenture
Dated as of May 15, 2000
Variable Denomination Floating Rate
Demand Notes
Reconciliation and Tie between Trust Indenture Act of 1939 and Indenture
Trust Indenture Indenture Section Trust Indenture Indenture Section
Act Section Act Section
Section 310(a)(l) 6.08 Section 316(a) 1.01
(a)(2) 6.08 (a)(1)(A) 5.12
(a)(3) Not Applicable (a)(l)(B) 5.13
(a)(4) Not Applicable (a)(2) Not Applicable
(a)(5) 6.08 (b) 5.08
(b) 6.07 and 6.09 (c) 1.04(5)
Section 311(a) 6.12 Section 317(a)(1) 5.03
(b) 6.12 (a)(2) 5.04
(b)(2) 6.12, 7.03(2) (b) 9.03
Section 312(a) 7.01, 7.02(1) Section 318(a) 1.07
(b) 7.02(2)
(c) 7.02(2)(c)
Section 313(a) 7.03(1)
(b) 7.03(2)
(c) 7.03(1), 703(2)
(d) 7.03(3)
Section 314(a)(l) 7.04
(a)(2) 7.04
(a)(3) 7.04
(a)(4) 9.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 315(a) 6.01(1)
(b) 6.02, 7.03(1)(g)
(c) 6.01(2)
(d) 6.01(3)
(d)(l) 6.01(1)(a)
(d)(2) 6.01(3)(b)
(d)(3) 6.01(3)(c)
(e) 5.14
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
Section 1.01 Definitions 1
Section 1.02 Compliance Certificates and Opinions 5
Section 1.03 Form of Documents Delivered to Trustee 6
Section 1.04 Acts of Holders 6
Section 1.05 Notices, Etc., to Trustee and Company 7
Section 1.06 Notice to Holders; Waiver 8
Section 1.07 Conflict with Trust Indenture Act 8
Section 1.08 Effect of Headings, Table of Contents,
and Reconciliation and Tie 8
Section 1.09 Successors and Assigns 9
Section 1.10 Separability Clause 9
Section 1.11 Benefits of Indenture 9
Section 1.12 Governing Law 9
Section 1.13 Legal Holidays 9
Section 1.14 Persons Deemed Owners 9
Section 1.15 Offset 10
ARTICLE TWO AMOUNT, PAYMENT AND RESTRICTION ON TRANSFER
OF SECURITIES 10
Section 2.01 Amount Unlimited 10
Section 2.02 Payment 10
Section 2.03 Restriction on Transfer of Securities 10
ARTICLE THREE REDEMPTION OF SECURITIES 10
Section 3.01 Redemption at Option of the Company 10
Section 3.02 Notice of Redemption 11
Section 3.03 Payment of Redemption Price 11
Section 3.04 Redemption at Option of the Holder 11
ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE 11
Section 4.01 Satisfaction and Discharge of Indenture 11
Section 4.02 Application of Trust Money 12
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Section 4.03 Repayment by Paying Agents 12
ARTICLE FIVE REMEDIES 12
Section 5.01 Events of Default 13
Section 5.02 Acceleration of Maturity; Rescission and Annulment 14
Section 5.03 Collection of Indebtedness and Suits
for Enforcement by Trustee 15
Section 5.04 Trustee May File Proofs of Claim 15
Section 5.05 Trustee May Enforce Claim Without
Possession of Securities 16
Section 5.06 Application of Money Collected 16
Section 5.07 Limitation on Suits 17
Section 5.08 Unconditional Right of Holders to Receive
Principal and Interest 17
Section 5.09 Restoration of Rights and Remedies 18
Section 5.10 Rights and Remedies Cumulative 18
Section 5.11 Delay or Omission Not Waiver 18
Section 5.12 Control by Holders 18
Section 5.13 Waiver of Past Defaults 19
Section 5.14 Undertaking for Costs 19
Section 5.15 Waiver of Stay or Extension Laws 20
ARTICLE SIX THE TRUSTEE 20
Section 6.01 Certain Duties and Responsibilities 20
Section 6.02 Notice of Defaults 21
Section 6.03 Certain Rights of Trustee 22
Section 6.04 Not Responsible for Recitals or
Issuance of Securities 23
Section 6.05 Money Held in Trust 24
Section 6.06 Compensation and Reimbursement 24
Section 6.07 Disqualification; Conflicting Interests 24
Section 6.08 Corporate Trustee Required; Eligibility 25
Section 6.09 Resignation and Removal; Appointment of Successor 25
Section 6.10 Acceptance of Appointment by Successor 27
Section 6.11 Merger, Conversion, Consolidation or Succession
to Business 27
Section 6.12 Preferential Collection of Claims Against Company 27
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 28
Section 7.01 Company to Furnish Trustee Names and
Addresses of Holders 28
Section 7.02 Preservation of Information; Communications to
Holders 28
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Section 7.03 Reports by Trustee 29
Section 7.04 Reports by Company 31
ARTICLE EIGHT SUPPLEMENTAL INDENTURES 32
Section 8.01 Supplemental Indentures Without Consent of Holders 32
Section 8.02 Supplemental Indentures with Consent of Holders 32
Section 8.03 Execution of Supplemental Indentures 33
Section 8.04 Effect of Supplemental Indentures 34
Section 8.05 Conformity with Trust Indenture Act 34
ARTICLE NINE COVENANTS 34
Section 9.01 Administration of Program; Payment of
Principal and Interest 34
Section 9.02 Maintenance of Security Register, Maintenance of
Office or Agency 34
Section 9.03 Money for Securities Payments to Be Held in Trust 35
Section 9.04 Certificate of Officers of the Company 36
Section 9.05 Waiver of Certain Covenants 37
ARTICLE TEN CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE 37
Section 10.01 Company May Consolidate, etc., Only on Certain Terms 37
Section 10.02 Successor Corporation Substituted 38
Section 10.03 Limitation on Lease of Properties as Entirety 38
iv
INDENTURE, dated as of May 15, 2000, between National Rural
Utilities Cooperative Finance Corporation, a corporation duly organized
and existing under the laws of the District of Columbia (herein called the
"Company"), having its principal office at 0000 Xxxxxxxxxxx Xxx, Xxxxxxx,
Xxxxxxxx, 00000-0000 and Bank One Trust Company, N.A., having its Corporate
Trust Office at 1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0000, a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
variable denomination floating rate demand notes (herein called the
Securities") pursuant to the Program (as defined below).
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE One
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture
Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of
America at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in New York or Chicago are
authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Governor, Chief Executive Officer,
Chairman of the Board, Vice Chairman of the Board, its President, Finance
Officer or a Vice President and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
2
"Corporate Trust Office" means an office of the Trustee at which at
any particular time its corporate trust business shall be administered.
"Corporation" includes corporations, associations, companies, limited
liability companies and business trusts.
"Event of Default" has the meaning specified in Section 5.01.
"Holder" means, with respect to a Security, a Person in whose name
at the time a particular beneficial ownership interest in a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Officers' Certificate" means a certificate signed by the Governor,
Chief Executive Officer, Chairman of the Board, Vice Chairman of the
Board, the President, Finance Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company or other counsel satisfactory to
the Trustee, which is delivered to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities in which Holders have made
investments as shown on the Securities Register, except:
(1) Securities or portions thereof theretofore redeemed by the
Holders pursuant to the provisions of the Program and this
Indenture;
(2) Securities or portions thereof theretofore redeemed by the
Company pursuant to the provisions of this Indenture;
(3) Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent), for the
Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
3
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Amount", when used with reference to a Security, means, as
of a particular time, the sum of the funds invested in a Security, plus the
sum of interest accrued, paid and reinvested in a Security, less the sum of
redemptions from time to time.
"Program" means the CFC Money Market Program established by the Company
and in effect on the date hereof, as the same may be amended or supplemented
by the Company from time to time.
"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.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee assigned to its Corporate Trust Office customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Secured Debt" means indebtedness for money borrowed which is secured
by a mortgage, pledge, lien, security interest or encumbrance on any
property of any character of the Company.
"Security'' or "Securities" means any Variable Denomination Floating
Rate Demand Note or Notes, as the case may be, issued pursuant to the
Program and under this Indenture, beneficial ownership interests in which
are evidenced by an individual record or entries in the name of the
particular Holder established on the Security Register.
4
"Security Register" has the meaning specified in Section 9.02.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 8.05.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added
before or after the title "vice president".
Section 1.02 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 9.04) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he/she has made such examination or investigation as is
necessary to enable him/her to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
5
Section 1.03 Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his/her certificate
or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.04 Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in
this Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual
6
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(3) The ownership of Securities shall be proved by reference to
the Security Register.
(4) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(5) The Company may set a record date for purposes of determining
the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or other Act
which record date shall be the later of ten (10) days prior to
the first solicitation of such action or the date of the most
recent list of Holders furnished to the Trustee pursuant to
Section 7.01 of this Indenture prior to such solicitation. 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 or to revoke any such previous action, whether or
not such persons continue to be Holders after such record
date. No such request, demand, authorization, direction,
notice, consent, waiver or other Act shall be valid or
effective for more than one hundred and twenty (120) days
after such record
date.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office,
Attention: Global Corporate Trust Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at
any other address previously furnished in writing, to the
Trustee or Holders by the Company.
8
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his/her address, as it appears in the
Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case
There notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
Section 1.08 Effect of Headings, Table of Contents, and Reconciliation
and Tie.
The Article and Section headings herein and the Table of Contents and
Reconciliation and Tie are for convenience only and shall not affect the
construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with Federal law and with the laws of the State of New York.
Section 1.13 Legal Holiday.
In any case where any payment date shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of the principal of or interest on the Securities need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the payment date, provided that no interest
hall accrue for the period from and after such payment date.
Section 1.14 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner
of such Security for the purpose of receiving payment of principal of or
interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 1.15 Offset.
The Company may offset against amounts payable on the Securities
amounts due and owing by beneficial owners of such Security. The Company
shall notify the Trustee of any such offset.
ARTICLE Two
AMOUNT, PAYMENT AND
RESTRICTION ON TRANSFER OF SECURITIES
Section 2.01 Amount Unlimited.
The amount of Securities issued and outstanding pursuant to the Program
and under this Indenture shall not be limited.
Section 2.02 Payment.
The Securities shall be payable at the office or agency of the Company
as may from time to time be designated in writing maintained for such
purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts.
Section 2.03 Restriction on Transfer of Securities.
The Securities may not be transferred, in whole or in part, either
directly or by operation of law or otherwise.
ARTICLE Three
REDEMPTION OF SECURITIES
Section 3.01 Redemption at Option of the Company.
The Company may redeem, at any time in its discretion, all or any
portion of the Securities issued pursuant to the Program and under this
Indenture. Any partial redemption of the entirety of the Securities will
be effected by lot or pro rata or by any other method that is deemed fair
and appropriate by the Board Resolution of the Company.
Section 3.02 Notice of Redemption
.
The Company will give prior written notice of at least thirty (30)
days but not more than ninety (90) days to Holders whose Securities are
subject to full or partial redemption. Such notice from the Company will
specify the Redemption Date, the Principal Amount being redeemed and the
effective date the redeemed amount shall become due and payable and that
interest shall cease to accrue as of that date. All partial redemption
notices will list the remaining Principal Amount of the Security.
Section 3.03 Payment of Redemption Price.
The full or partial Security being redeemed, plus accrued and unpaid
interest therein to the Redemption Date, shall be paid by wire transfer to
the Holder. The Company covenants that it will pay or cause to be paid to
the Trustee or to the Paying Agent cash in an amount sufficient to pay the
Principal Amount of the Security or portion thereof to be redeemed on such
date, together with accrued and unpaid interest to the Redemption Date.
Interest on the redeemed amount shall cease to accrue on and after the
effective date the redeemed amount shall have become due and payable and
paid by the Company.
10
Section 3.04 Redemption at Option of the Holder.
Subject to the terms and conditions of the Program, a Security may be
redeemed in full or in part at any time at the option of, and upon demand
by, the Holder. Subject to the terms and conditions of the Program, demand
may be made for full or partial redemption of a Security by demand to the
Company pursuant to the Program in such manner as the Company deems
appropriate. The Company covenants that it will pay or cause to be paid to
the Trustee or to the Paying Agent funds in an amount sufficient to pay the
Principal Amount plus accrued and unpaid interest of the Security to be
redeemed.
ARTICLE Four
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.01 Satisfaction and Discharge of Indenture.
If at any time:
(1) the Company shall have terminated the Program pursuant to its
provisions,
(2) all the Securities shall have become due and payable,
(3) the Company shall have deposited or caused to be deposited with
the Trustee as trust funds the entire amount (other than moneys
repaid by any Paying Agent to the Trustee in accordance with
Section 4.03) sufficient to pay all the Securities, including
principal and interest due or to become due to such date of
payment, and
(4) the Company shall have paid or caused to be paid all other sums
payable hereunder by the Company,
then this Indenture shall cease to be of further effect, and the Trustee, on
demand of and at the cost and expense of the Company shall execute proper
instruments acknowledging satisfaction of and discharge of this Indenture.
The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection
with this Indenture, the Program or the Securities.
Section 4.02 Application of Trust Money.
All moneys deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent), to
the Holders of the Securities for the payment of which such moneys have been
deposited with the Trustee of all sums due and to become due thereon for
principal and interest. The Trustee shall be under no obligation to invest
or pay interest on any moneys so held in trust.
11
Section 4.03 Repayment by Paying Agents.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be repaid to it or paid to
the Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE Five
REMEDIES
Section 5.01 Events of Default.
"Events of Default", means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any part of or all the principal of
or interest on any Security as and when the same shall be due
and payable, in accordance with the then current provisions
and rules and regulations of the Program and this Indenture,
and continuance of such default for a period of twenty (20)
days; or
(2) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of
ninety (90) days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least twenty-five per cent
(25%) in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(3) the entry by a court having jurisdiction in the premises of:
(a) a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or
(b) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the
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Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect
for a period of sixty (60) consecutive days; or
(4) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by it to the entry of a decree or order for
relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(5) in connection with any proceeding under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors
involving the Company, an order for relief shall be entered by
a court of competent jurisdiction which affects any significant
part of the assets of the Company.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Securities occurs and is
continuing, then in every such case the Trustee or the Holders of not less
than fifty percent (50%) in the Principal Amount of the Outstanding
Securities may declare all of the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
the Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if:
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) the Principal Amount of any Securities which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor
in such Securities;
(b) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(c) 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) all Events of Default with respect to the Securities, other
than the non-payment of the principal of Securities which have
become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that, if default is made in the payment of the
principal of or interest on any Security when the same shall have become due
and payable, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of the Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
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protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee and any predecessor Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any
of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities.
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Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.06; and SECOND: To the payment of the amounts then
due and unpaid for principal of and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively.
Section 5.07 Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than fifty percent (50%) in principal
amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for ninety (90) days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such ninety (90) day period by the
Holders of a majority in principal amount of the Outstanding
Securities; it being understood and intended that no one or
more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all
such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Security on the
applicable due date provided therefor pursuant to the Program
16
(or, in the case of redemption, on the redemption date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy acting upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities, provided that
such direction shall not be in conflict with any rule of law
or with this Indenture,
subject to Section 6.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee shall
reasonably determine, in good faith, that the action or
proceeding so directed would be unjustly prejudicial to any
Holders not joining in such direction or would involve
17
the Trustee in any personal liability unless indemnified to
its reasonable satisfaction, and
the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in Principal Amount of the
Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default:
(1) in the payment of the principal of or interest on any Security,
or
(2) in respect of a covenant or provision hereof which under
Article Eight cannot be amended without the consent of the
Holders of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
All Parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than ten percent (10%) in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or interest on the Security
on or after the applicable due date therefor provided pursuant to the
Program (or, in the case of redemption, on or after, the Redemption Date).
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
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ARTICLE Six
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(b) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of the Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Indenture.
(2) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a
prudent person would exercise or use under the
circumstances in the conduct of his/her own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its
own willful misconduct, except that
(a) this Subsection shall not be construed to limit the
effect of Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(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 a majority in Principal Amount of the Outstanding
Securities, determined as provided in Section 5.12,
relating to the time, method and place of conducting
any
19
proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the
Securities; and
(d) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it.
(4) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
Within ninety (90) days after the occurrence of any default hereunder
with respect to the Securities, the Trustee shall transmit by mail to all
Holders of Securities, as their names and addresses appear in the Security
Register, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or interest on any
Security, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders of Securities; and provided, further, that in the case of any default
of the character specified in Section 5.01(3) with respect to the Securities,
no such notice to Holders shall be given until at least thirty (30) days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
20
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee
(4) (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an
Officers' Certificate; the Trustee may consult with counsel
and the written advice, or oral advice subsequently confirmed
in writing, of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered
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 the Indenture.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture, the Program or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of the Securities or
the proceeds thereof.
21
Section 6.05 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company
Section 6.06 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful
misconduct, on the Trustee's or any predecessor Trustee's
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of their duties hereunder, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
Section 6.07 Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act during the period of time provided for therein.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the second-to-last paragraph of Section 310(b) of
the Trust Indenture Act.
Section 6.08 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or
22
State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the
Trust Indenture Act at any time permit a corporation organized and doing
business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 6.08
shall be automatically amended to permit a corporation organized and
doing business under the laws of any such other jurisdiction to serve
as Trustee hereunder. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report
of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the
Company may serve as Trustee. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.09 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable
requirements of Section 6.10.
(2) The Trustee may resign at any time with respect to the
Securities by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee
within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may appoint or petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(3) The Trustee may be removed at any time with respect to the
Securities by Act of the Holders of a majority in Principal
Amount of the Outstanding Securities, delivered to the Trustee
and to the Company or, so long as no Event of Default has
occurred and is continuing, by the Company with notice to the
Trustee.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.07 after
written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least
six (6) months, unless the Trustee's duty to resign has
been stayed as provided in Section 310(b) of the Trust
Indenture Act, or
(b) the Trustee shall cease to be eligible under Section 6.08
and shall fail to resign after written request therefor by
the Company or by any such Holder, or
23
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six (6) months may, on behalf
of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(5) 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, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with
the applicable requirements of Section 6.10. If, within one (1)
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company
and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10,
become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 6.10, any Holder who has been a bona fide Holder of a
Security for at least six (6) months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
(6) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities as their
names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
Section 6.10 Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee,
every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
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(2) further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (1) of this
Section.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 6.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
Section 6.12 Preferential Collection of Claims Against Company.
The Trustee shall be subject to Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) thereof.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of
Holder.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than March 1 and September 1 in
each year, a list in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of the
preceding February 15 or August 15, as the case may be plus the
interest rates on the Securities in effect from time to time,
and
(2) at such other times as the Trustee may request in writing,
within thirty (30) days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than fifteen (15) days prior to
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the time such list is furnished; excluding from any such list
names and addresses received by the Trustee in its capacity as
Security Registrar.
Section 7.02 Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(2) If three (3) or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish
to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six (6) months
preceding the date of such application, and such application
states that the applicants desire to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five (5) business
days after the receipt of such application, at its election,
either
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section
7.02(1), or
(b) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with
Section 7.02(1), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon written request
of such applicants, mail to each Holder whose name and address
appear in the information preserved at the time by the Trustee
in accordance with Section 7.02(1) a copy of the form of proxy
or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within
five (5) days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy
of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon
26
the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one
or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 7.02(2), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.02.
Section 7.03 Reports by Trustee.
(1) Within sixty (60) days after May 15 of each year beginning
with the year 2001, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect
to any of the following events which may have occurred within
the previous twelve (12) months (but if no such event has
occurred within such period, no report need be transmitted):
(a) any change to its eligibility under Section 6.08 and its
qualifications under Section 6.07;
(b) The creation of or any material change to a relationship
specified in Section 3.10(b)(1) through Section 3.10(b)
(10) of the Trust Indenture Act;
(c) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which
remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid
aggregate not more than one-half of one percent (1/2 of 1%)
of the principal amount of the Securities Outstanding on
the date of such report;
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(d) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with a
brief description of any property held as collateral
security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in
Section 6.12(2)(b), (c), (d) or (f);
(e) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such
report;
(f) any additional issue of Securities which the Trustee has
not previously reported; and
(g) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities,
except action in respect of a default, notice of which
has been or is to be withheld by the Trustee in accordance
with Section 6.02.
(2) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to
Subsection (1) of this Section (or if no such report has yet
been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on
property or funds held or collected by it as Trustee and which
it has not previously reported pursuant to this Subsection,
except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at
any time aggregate ten percent (10%) or less of the principal
amount of the Securities Outstanding at such time, such report
to be transmitted within ninety (90) days after such time.
(3) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
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Section 7.04 Reports by Company.
The Company shall:
(1) file with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section
13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions
and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within thirty (30) days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
29
>
(2) to add to the covenants of the Company for the benefit of the
Holders of the Securities or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.10(2); or
(5) to cure any ambiguity, or correct or supplement any provision
herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of
the Holders of Securities in any material respect.
Section 8.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders
of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the character of the Securities from being payable on
demand or reduce the principal amount of any Security or impair
the right to institute suit for the enforcement of any such
payment on or after the applicable due date thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) Change any obligation of the Company, with respect to
Outstanding Securities, to maintain an office or agency in the
places and for the purposes specified in Section 9.02, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 9.04, except to increase any such percentage or to
provide that certain other
30
provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Security
affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 9.04, or the deletion of
this proviso, in accordance with the requirements of Sections
6.10(2) and 8.01(5).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 8.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Section 8.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 8.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE NINE
COVENANTS
Section 9.01 Administration of Program; Payment of Principal and
Interest.
(1) The Company covenants and agrees to maintain and administer
the Program and the Securities issued pursuant thereto in
accordance with the provisions of the Program, as the same may
from time to time be in force and effect, and this Indenture;
provided, however, that nothing herein shall prevent the
Company from exercising any of its rights to amend, modify or
terminate the Program, or to adopt, amend or rescind the rules
established under the Program, as provided therein.
31
(2) The Company covenants and agrees for the benefit of Holders of
Securities that it will duly and punctually pay or credit the
principal of and interest on the Securities in accordance with
the terms of the Program and this Indenture. Interest will
accrue on the Principal Amount of the Securities in accordance
with the provisions of the Program. The interest rate on the
Securities shall be determined in accordance with the
provisions of the Program. Interest rates will vary from time
to time. There are no minimum or maximum interest rates.
Section 9.02 Maintenance of Security Register, Maintenance of
Office or Agency.
(1) The Company will keep at an office or agency proper books of
record and account (which books may be in written form or in
any other form capable of being converted into written form)
in which full and correct entries shall be made of all funds
invested in the Securities, together with interest accrued or
credited thereon, and all redemptions thereof, in accordance
with sound accounting practice and which shall contain the
names and addresses of all Holders and the Principal Amounts
of their respective Securities (collectively, the "Security
Register").
(2) The Company will maintain in Herndon, Virginia or such other
city where the Company maintains its corporate headquarters an
office or agency where notices and demands hereunder may be
given to or made upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt
written notice to the Trustee and the Holders of the location,
and any change in the location, of any such office or agency.
If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
Section 9.03 Money for Securities Payments to Be Held in Trust.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of, or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its failure so to act.
The Company hereby agrees, and will cause each Paying Agent other
than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject, to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
or interest on Securities in trust for the benefit of the
Persons entitled thereto until such
32
sums shall be paid to such Persons or otherwise disposed of as
herein provided; give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal or interest on the
Securities; and
(2) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or
interest on any Security and remaining unclaimed for three years after
such principal or interest has become due and payable shall be paid to
the Company upon delivery of a Company Request and an Opinion of
Counsel; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in Washington, D.C., notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.04 Certificate of the Company.
On or before the last day of August of each year beginning with the
year 2000, the Company will file with the Trustee a certificate of the
principal executive officer, principal financial officer or principal
accounting officer stating whether or not the signer has obtained
knowledge of any action or failure to act on the part of the Company
during the preceding calendar year in violation of any covenant,
agreement, provision or condition contained in this Indenture and,
if so, specifying, each such default of which the signers may have
knowledge and the nature thereof. For purposes of this Section 9.04,
compliance shall be determined without regard to any period of grace
or requirement of notice provided pursuant to the terms of this
Indenture.
33
Section 9.05 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 9.02 or 9.03, if
before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or general waive
compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE TEN
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 10.01 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer 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 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
or any state or the District of Columbia, and shall expressly
assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of and interest
on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, 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 or transfer and if a
supplemental indenture is required in connection with such a
transaction, such supplemental indenture complies with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
34
Section 10.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Company substantially as an entirety
in accordance with Section 10.2, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, the predecessor
corporation shall be relieved of all obligation and covenants under
this Indenture and the Securities and may be liquidated and dissolved.
Section 10.03 Limitation on Lease of Properties as Entirety.
The Company shall not lease its properties and assets substantially
as an entirety to any Person.
35
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
By:___________________________________
[Title]
BANK ONE TRUST COMPANY, N.A.
By:___________________________________
36
STATE OF _____________
COUNTY OF ___________
On ______________, before me personally came _______________, to me
known, who, being by me duly sworn, did depose and save that he is a
_____________________ of National Rural Utilities Cooperative Finance
Corporation, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation,
that the seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
______________________________________
Notary Public
STATE OF _________________
COUNTY OF _______________
On ________________, before me personally came ____________________,
to me known, who, being by me duly sworn, did depose and say that he
is a ______________ of Bank One Trust Company, N.A., one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
______________________________________
Notary Public
