Exhibit 4.12
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CIT GROUP INC.
AND
BANK ONE TRUST COMPANY, N.A.,
as Trustee
and
BANK ONE NA, LONDON BRANCH
as London Paying Agent and London Calculation Agent
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Indenture
Dated as of August 26, 2002
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DEBT SECURITIES
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Exhibit 4.12
TRUST INDENTURE ACT CROSS REFERENCE SHEET*
Sections of Trust Sections of
Indenture Act Indenture
310(a)(1) 11.05
310(a)(2) 11.05
310(a)(3) Not applicable
310(a)(4) Not applicable
310(a)(5) 11.05
310(b) 11.06
310(c) Not applicable
311 11.09
312 10.03
313 10.01
314(a) 10.02, 6.05
314(b) Not applicable
314(c) 15.04
314(d) Not applicable
314(e) 15.04
315(a) 11.02(1)
315(b) 11.03
315(c) 11.02
315(d) 11.02
315(e) 7.10
316(a) 7.08 and 8.03
316(b) 7.09
316(c) 8.04
317(a) 7.03 and 7.04
317(b) 6.03
318(a) 15.06
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*The Trust Indenture Act Cross Reference Sheet is not a part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS...................................................................................1
Section 1.01......................................................................................1
Section 1.02......................................................................................1
Board of Directors.......................................................................1
Board Resolution.........................................................................2
Business day.............................................................................2
Component Currency.......................................................................2
Consolidated Subsidiaries................................................................2
Control..................................................................................2
Conversion Event.........................................................................2
Corporate trust office...................................................................2
Corporation..............................................................................3
Currency Determination Agent.............................................................3
Debt Security............................................................................3
Debt Securityholder; holder of Debt Securities; holder...................................3
Depositary...............................................................................3
Dollars..................................................................................3
Election Date............................................................................3
Event of default.........................................................................4
Foreign Currency.........................................................................4
Global Security..........................................................................4
Government Obligations...................................................................4
Indenture................................................................................4
Interest.................................................................................5
Judgment Date............................................................................5
LIBOR....................................................................................5
LIBOR Currency...........................................................................5
LIBOR Security...........................................................................5
London Business Day......................................................................5
London Paying Agent......................................................................5
Majority.................................................................................5
Market Exchange Rate.....................................................................5
Maturity.................................................................................6
Officer..................................................................................6
Officers' Certificate....................................................................6
Officer's Order..........................................................................6
Opinion of Counsel.......................................................................6
Original Issue Discount Securities.......................................................6
Outstanding..............................................................................6
Paying Agent.............................................................................7
Person...................................................................................7
Place of Payment.........................................................................7
Principal Financial Center...............................................................7
i
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Record Date..............................................................................8
Responsible Officer......................................................................8
Stock Exchange...........................................................................8
Subsidiary...............................................................................8
Substitute Date..........................................................................8
Trust Indenture Act of 1939..............................................................8
Trustee..................................................................................9
Voting stock.............................................................................9
ARTICLE TWO ISSUE, EXECUTION, AUTHENTICATION, REGISTRATION, AND EXCHANGE OF DEBT SECURITIES...............9
Section 2.01......................................................................................9
Section 2.02.....................................................................................11
Section 2.03.....................................................................................12
Section 2.04.....................................................................................12
Section 2.05.....................................................................................13
Section 2.06.....................................................................................15
Section 2.07.....................................................................................16
Section 2.08.....................................................................................17
Section 2.09.....................................................................................17
Section 2.10.....................................................................................17
Section 2.11.....................................................................................20
Section 2.12.....................................................................................20
ARTICLE THREE ISSUE OF DEBT SECURITIES..................................................................21
Section 3.01.................................................................................... 21
ARTICLE FOUR REDEMPTION OF DEBT SECURITIES.............................................................22
Section 4.01.....................................................................................22
Section 4.02.....................................................................................22
Section 4.03.....................................................................................23
Section 4.04.....................................................................................24
ARTICLE FIVE SINKING FUNDS..............................................................................24
Section 5.01.....................................................................................24
Section 5.02.....................................................................................24
Section 5.03.....................................................................................24
ARTICLE SIX PARTICULAR COVENANTS OF THE CORPORATION.....................................................25
Section 6.01.....................................................................................25
Section 6.02.....................................................................................25
Section 6.03.....................................................................................26
Section 6.04.....................................................................................30
Section 6.05.....................................................................................32
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Page
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Section 6.06....................................................................................32
ARTICLE SEVEN REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS.............................................33
Section 7.01....................................................................................33
Section 7.02....................................................................................35
Section 7.03....................................................................................36
Section 7.04....................................................................................37
Section 7.05....................................................................................37
Section 7.06....................................................................................38
Section 7.07....................................................................................38
Section 7.08....................................................................................38
Section 7.09....................................................................................39
Section 7.10....................................................................................39
Section 7.11....................................................................................40
Section 7.12....................................................................................40
Section 7.13....................................................................................40
ARTICLE EIGHT CONCERNING THE DEBT SECURITYHOLDERS......................................................41
Section 8.01....................................................................................41
Section 8.02....................................................................................41
Section 8.03....................................................................................42
Section 8.04....................................................................................42
ARTICLE NINE DEBT SECURITYHOLDERS' MEETINGS............................................................42
Section 9.01....................................................................................42
Section 9.02....................................................................................43
Section 9.03....................................................................................43
Section 9.04....................................................................................43
Section 9.05....................................................................................43
Section 9.06....................................................................................44
Section 9.07....................................................................................45
ARTICLE TEN REPORTS BY THE CORPORATION AND THE TRUSTEE AND DEBT SECURITYHOLDERS' LISTS.................45
Section 10.01...................................................................................45
Section 10.02...................................................................................45
Section 10.03...................................................................................46
ARTICLE ELEVEN CONCERNING THE TRUSTEE..................................................................47
Section 11.01...................................................................................47
Section 11.02...................................................................................49
Section 11.03...................................................................................50
Section 11.04...................................................................................50
Section 11.05...................................................................................50
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Section 11.06...................................................................................51
Section 11.07...................................................................................51
Section 11.08...................................................................................52
Section 11.09...................................................................................53
Section 11.10...................................................................................53
Section 11.11...................................................................................53
ARTICLE TWELVE DEFEASANCE..............................................................................53
Section 12.01...................................................................................53
Section 12.02...................................................................................54
Section 12.03...................................................................................54
Section 12.04...................................................................................55
Section 12.05...................................................................................55
Section 12.06...................................................................................55
ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS......................56
Section 13.01...................................................................................56
ARTICLE FOURTEEN SUPPLEMENTAL INDENTURES...............................................................56
Section 14.01...................................................................................56
Section 14.02...................................................................................57
Section 14.03...................................................................................58
Section 14.04...................................................................................59
Section 14.05...................................................................................59
Section 14.06...................................................................................59
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS...............................................................59
Section 15.01...................................................................................59
Section 15.02...................................................................................60
Section 15.03...................................................................................60
Section 15.04...................................................................................60
Section 15.05...................................................................................61
Section 15.06...................................................................................61
Section 15.07...................................................................................61
Section 15.08...................................................................................62
Section 15.09...................................................................................62
iv
INDENTURE dated as of August 26, 2002 among CIT Group Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), Bank One Trust Company, N.A., a banking
corporation/association duly organized and existing under the laws of the United
States (the "Trustee") and Bank One NA, London Branch, as London Paying Agent
and London Calculation Agent.
RECITALS OF THE CORPORATION
The Corporation is authorized to borrow money for its
corporate purposes and to issue debentures, notes or other evidences of
indebtedness therefor; and for its corporate purposes, the Corporation has
determined to make and issue its debentures, notes or other evidences of
indebtedness in one or more series (the "Debt Securities"), as hereinafter
provided, up to such principal amount or amounts as may from time to time be
authorized by or pursuant to the authority granted in one or more resolutions of
the Board of Directors.
All things necessary to make this Indenture a valid agreement
of the Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual
covenants herein contained and for other valuable consideration, the receipt
whereof is hereby acknowledged, and in order to declare the terms and conditions
upon which the Debt Securities are to be issued, IT IS HEREBY COVENANTED,
DECLARED AND AGREED, by and between the parties hereto, that all the Debt
Securities are to be executed, authenticated and delivered subject to the
further covenants and conditions hereinafter set forth; and the Corporation, for
itself and its successors, does hereby covenant and agree to and with the
Trustee and its successors in said trust, for the benefit of those who shall
hold the Debt Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Unless otherwise defined in this Indenture or
the context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of 1939.
Section 1.02. Unless the context otherwise requires, the terms
defined in this Section 1.02 shall for all purposes of this Indenture and of any
indenture supplemental hereto have the meanings hereinafter set forth, the
following definitions to be equally applicable to both the singular and the
plural forms of any of the terms herein defined:
Board of Directors:
The term "Board of Directors" shall mean the Board of
Directors of the Corporation or any duly authorized committee of the Board of
Directors of the Corporation.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Corporation 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:
The term "Business Day" shall mean any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York; provided, however, that, with respect to
Debt Securities not denominated in Dollars, the day is also not a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in the Principal Financial Center of the country issuing the
Foreign Currency or currency unit or, if the Foreign Currency or currency unit
is euro, the day is a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) System is open; provided, further, that,
with respect to LIBOR Securities, the day is also a London Business Day.
Component Currency:
The term "Component Currency" has the meaning specified in
Section 2.10(e).
Consolidated Subsidiaries:
The term "Consolidated Subsidiaries" shall mean all
subsidiaries except, at any given time, any subsidiary the accounts of which are
excluded from the consolidated financial statements included in the last
preceding annual report of the Corporation with the approval of the independent
certified or public accountants or auditors who examined and reported on said
financial statements.
Control:
The term "control" shall mean the power to direct the
management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Conversion Event:
The term "Conversion Event" means the unavailability of any
Foreign Currency or currency unit due to the imposition of exchange controls or
other circumstances beyond the Corporation's control.
Corporate trust office:
The term "corporate trust office" shall mean the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office is
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presently located at [_____________________________________]; notices shall be
so addressed and directed to the attention of Global Corporate Trust Services.:
Corporation:
The term "Corporation" shall mean CIT Group Inc., a Delaware
corporation, unless and until any successor corporation shall have become such
pursuant to the provisions of Section 15.01 hereof, and thereafter "Corporation"
shall mean such successor.
Currency Determination Agent:
The term "Currency Determination Agent", with respect to Debt
Securities of any series, means, unless otherwise specified in the Debt
Securities of any series, a New York Clearing House bank designated pursuant to
Section 2.10 or Section 2.11.
Debt Security:
The term "Debt Security" shall mean one of the Debt
Securities, or one of any series of Debt Securities (including any Global
Securities) issued hereunder. A Debt Security (including any Global Security)
shall be deemed to have been issued hereunder when duly authenticated by the
Trustee or an agent designated by the Trustee and delivered pursuant to the
provisions of this Indenture.
Debt Securityholder; holder of Debt Securities; holder:
The term "Debt Securityholder" or "holder of Debt Securities"
or "holder", with respect to any Debt Security, shall mean the person in whose
name such Debt Security shall be registered in the register kept for that
purpose hereunder.
Depositary:
The term "Depositary" means with respect to the Debt
Securities of any series issuable or issued in the form of a Global Security,
the clearing agency designated as Depositary by the Corporation pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each clearing agency who is then a Depositary hereunder, and if at
any time there is more than one such clearing agency, "Depositary" as used with
respect to the Debt Securities of any such series shall mean the Depositary with
respect to the Debt Securities of that series.
Dollars:
The term "Dollars" and the sign "$" mean the currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Election Date:
The term "Election Date" has the meaning specified in Section
2.10(e).
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Event of default:
The term "event of default" shall have the meaning specified
in Section 7.01.
Foreign Currency:
The term "Foreign Currency" means a currency issued and
actively maintained as a country's recognized unit of domestic exchange by the
government of any country other than the United States and such term shall
include the euro.
Global Security:
The term "Global Security" shall mean a Debt Security
evidencing all or part of a series of Debt Securities which is executed by the
Corporation and authenticated and delivered to the Depositary or pursuant to the
Depositary's instructions, all in accordance with this Indenture and pursuant to
a written order of the Corporation signed by two Officers, which shall be
registered in the name of the Depositary or its nominee and which shall
represent the amount of uncertificated Debt Securities as specified therein.
Government Obligations:
The term "Government Obligations" means securities which are
(i) direct obligations of the government which issued the currency in which the
Debt Securities of a particular series are payable (except as provided in
Sections 2.10(b) and 2.10(d), in which case with respect to Debt Securities for
which an election has occurred pursuant to Section 2.10(b), or a Conversion
Event has occurred as provided in Section 2.10(d), such obligations shall be
issued in the currency or currency unit in which such Debt Securities are
payable as a result of such election or Conversion Event) or (ii) obligations of
a Person controlled or supervised by or acting as an agency or instrumentality
of the government which issued the currency in which the Debt Securities of such
series are payable (except as provided in Sections 2.10(b) and 2.10(d), in which
case with respect to Debt Securities for which an election has occurred pursuant
to Section 2.10(b), or a Conversion Event has occurred as provided in Section
2.10(d)), such obligations shall be issued in the currency or currency unit in
which such Debt Securities are payable as a result of such election or
Conversion Event), the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such currency and are not callable or redeemable at the
option of the issuer thereof.
Indenture:
The term "Indenture" or "this Indenture" shall mean this
instrument and all indentures supplemental hereto, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument,
any such supplemental indenture and the terms of each Debt Security issued
thereunder, respectively.
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Interest:
The term "interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only after maturity,
means interest payable after maturity.
Judgment Date:
The term "Judgment Date" has the meaning specified in Section
7.13.
LIBOR:
The term "LIBOR" means, with respect to any series of Debt
Securities, the rate specified as LIBOR for such Debt Securities in accordance
with Section 2.01.
LIBOR Currency:
The term "LIBOR Currency" means the currency specified
pursuant to Section 2.01 as to which LIBOR will be calculated or, if no currency
is specified pursuant to Section 2.01, Dollars.
LIBOR Security:
The term "LIBOR Security" means any Debt Security which bears
interest at a floating rate calculated with reference to LIBOR.
London Business Day:
The term "London Business Day" means, with respect to any
LIBOR Security, a day on which commercial banks are open for business, including
dealings in the LIBOR Currency, in London.
London Paying Agent:
The term "London Paying Agent" means Bank One NA, London
Branch or any other Person authorized by the Corporation to serve as London
Paying Agent and to pay the principal of (and premium, if any) or interest, if
any, on any Debt Securities of any series denominated in euros on behalf of the
Corporation.
Majority:
The term "majority", with respect to the Debt Securities or
any series of Debt Securities, shall signify "majority in principal amount"
whether or not so expressed.
Market Exchange Rate:
The term "Market Exchange Rate" with respect to any Foreign
Currency or currency unit on any date means, unless otherwise specified in
accordance with Section 2.01, the noon buying rate in The City of New York for
cable transfers in such Foreign Currency or
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currency unit as certified for customs purposes by the Federal Reserve Bank of
New York for such Foreign Currency or currency unit.
Maturity:
The term "maturity", with respect to any Debt Security, shall
mean the date on which the principal of such Debt Security shall become due and
payable as therein or herein provided, whether at stated maturity or by
declaration of acceleration of the maturity thereof, call for redemption, or
otherwise.
Officer:
The term "officer" or "Officers" of the Corporation shall mean
the Chairman, Vice Chairman, President, or a Vice President, and if a second
officer is required shall mean, in addition to the above, the Treasurer, an
Assistant Treasurer, the Secretary, or an Assistant Secretary.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman, Vice Chairman, President, or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary of
the Corporation, and delivered to the Trustee.
Officer's Order:
The term "Officer's Order" shall mean a written request signed
by the Chairman, Vice Chairman, President, or a Vice President of the
Corporation, and delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of
counsel, which may be given by an employee of or of counsel to the Corporation,
and which in form and substance shall be acceptable to the Trustee.
Original Issue Discount Securities:
The term "Original Issue Discount Securities" shall mean any
Debt Securities which are initially sold at a discount from the principal amount
thereof and which provide upon an event of default for declaration of an amount
less than the principal amount thereof to be due and payable upon acceleration
of the Maturity thereof.
Outstanding:
The term "outstanding" or "Outstanding", subject to Section
8.03 hereof, when used as of any particular time with reference to the Debt
Securities, shall mean all the Debt Securities which shall theretofore have been
issued under this Indenture, except: (a) Debt Securities which shall be deemed
to have been retired as hereinafter provided; (b) Debt Securities, including any
portion of a Global Security, which shall have been surrendered to the
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Trustee for cancellation; (c) Debt Securities in substitution for which other
Debt Securities shall have been issued pursuant to Section 2.07; and (d) Debt
Securities or portions thereof for the payment or redemption of which moneys in
the necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Corporation) or shall have been set aside and
segregated in trust by the Corporation (if the Corporation shall act as its own
paying agent), provided that if such Debt Securities are to be redeemed prior to
the stated maturity thereof, notice of such redemption shall have been mailed as
provided in Article Four hereof, or provision satisfactory to the Trustee shall
have been made for mailing such notice. In determining whether the holders of
the requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 7.02
and (ii) the principal amount of a Debt Security denominated in a foreign
currency or currencies shall be the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the principal amount (or, in
the case of an Original Issue Discount Security denominated in such foreign
currency, the U.S. dollar equivalent on the date of original issuance of such
Debt Security of the amount determined as provided in (i) above) of such Debt
Security.
Paying Agent:
The term "Paying Agent" means Bank One Trust Company, N.A. or
any other Persons authorized by the Corporation to pay the principal of (and
premium, if any) or interest, if any, on any Debt Securities of any series
denominated in Dollars on behalf of the Corporation.
Person:
The term "person" or "Person" shall mean an individual, a
corporation, a partnership, a joint venture, an association, a joint stock
company, a trust, an unincorporated organization, or a government or an agency
or political subdivision thereof.
Place of Payment:
The term "Place of Payment", when used with respect to the
Debt Securities of any particular series, means the place or places where the
principal of (and premium, if any) and interest, if any, on the Securities of
that series are payable, as contemplated by Section 2.01.
Principal Financial Center:
The term "Principal Financial Center" means, unless otherwise
specified in accordance with Section 2.01:
o the capital city of the country issuing the Foreign Currency
or currency unit, except that with respect to Dollars, Australian dollars,
Canadian dollars, Deutsche marks, Dutch guilders, South African rand and Swiss
francs, the "Principal Financial Center" will be The City of New York, Sydney
and Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx and Zurich,
respectively, or
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o the capital city of the country to which the LIBOR Currency
relates, except that with respect to Dollars, Canadian dollars, Deutsche marks,
Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" will be Xxx Xxxx xx Xxx Xxxx, Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxx and Zurich, respectively.
Record Date:
The term "Record Date", when used with respect to an interest
payment date for a series of Debt Securities, shall mean the date fixed by a
Board Resolution or indenture supplemental hereto referred to in Section 2.01
for the determination of the holders of such Debt Securities entitled to
payments of interest on such interest payment date.
Responsible Officer:
The term "responsible officer" of the Trustee hereunder shall
mean any officer within the corporate trust office of the Trustee, which may
include the chairman and vice chairman of the board of directors, the president,
the chairman of the executive committee of the board of directors, the chairman
of the trust committee, every vice president or officer senior thereto, every
assistant vice president, the secretary, every assistant secretary, the
treasurer, every assistant treasurer, every trust officer, every assistant trust
officer, and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
Stock Exchange
The term "Stock Exchange", unless specified otherwise with
respect to any particular series of Debt Securities, means the Luxembourg Stock
Exchange.
Subsidiary:
The term "subsidiary" shall mean any corporation, association
or business trust at least a majority of the shares of the voting stock of which
shall at the time be owned, directly or indirectly, by the Corporation or by one
or more subsidiaries or by the Corporation and one or more subsidiaries.
Substitute Date:
The term "Substitute Date" has the meaning specified in
Section 7.13.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean such act as
amended to the date of this Indenture; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
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Trustee:
The term "Trustee" shall mean the person named as Trustee in
the first paragraph of this Indenture and, subject to the provisions of Article
Eleven hereof, its successors and assigns. If, pursuant to the terms hereof,
more than one person shall be designated as Trustee hereunder, then the term
"Trustee" when used with respect to the Debt Securities of any series shall mean
the Trustee for such series.
Voting stock:
The term "voting stock", as applied to the stock (or the
equivalent thereof, in the case of corporations incorporated outside the
continental limits of the United States of America) of any corporation, shall
mean stock (or such equivalent) of any class or classes, however designated,
having ordinary voting power for the election of directors of such corporation,
other than stock (or such equivalent) having such power only by reason of the
happening of a contingency.
Certain other terms, relating principally to provisions
included in this Indenture in compliance with the Trust Indenture Act of 1939,
are defined in Article Eleven.
ARTICLE TWO
ISSUE, EXECUTION, AUTHENTICATION, REGISTRATION, AND EXCHANGE OF DEBT SECURITIES
Section 2.01. The aggregate principal amount of Debt
Securities which may be executed by the Corporation and authenticated and
delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution or established in one
or more indentures supplemental hereto, prior to the issuance of Debt Securities
of any series:
(1) the title of the Debt Securities of the series
(which shall distinguish the Debt Securities of the series from all
other Debt Securities);
(2) any limit upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to this Indenture);
(3) the date or dates on which the principal of (and
premium, if any, on) the Debt Securities of the series is payable;
(4) the Person to whom any interest on a Debt Security
of the series shall be payable, if other than the Person in whose name
that Debt Security is registered at the close of business on the Record
Date for such interest; the rate or rates (which may be fixed or
variable) at which the Debt Securities of the series shall bear
interest, if any,
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or the method of determining such rate or rates; the date or dates
from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and the Record Dates for the
determination of Debt Securityholders to whom interest is payable;
(5) the designation of the office or agency of the
Corporation in the Borough of Manhattan, The City of New York, or in
such other jurisdiction as may be designated in writing by the
Corporation, where the Debt Securities of the series may be presented
for payment, may be transferred or exchanged by the registered holders
thereof or by their attorneys duly authorized in writing, and where
notices and demands in respect of the Indenture and the Debt Securities
of the series may be served;
(6) the price or prices at which, the period or
periods within which, and the terms and conditions upon which the Debt
Securities of the series may be redeemed, in whole or in part, at the
option of the Corporation, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Corporation to
redeem, purchase, or repay the Debt Securities of any series pursuant
to any sinking fund or analogous provisions or at the option of a Debt
Securityholder thereof, and the price or prices at which and the period
or periods within which and the terms and conditions upon which the
Debt Securities of such series shall be redeemed, purchased, or repaid,
in whole or in part, pursuant to such obligation;
(8) the denominations in which the Debt Securities of
the series shall be issuable if other than $1,000 and integral
multiples thereof, and if less than $1,000, the principal amount which
shall be entitled to one vote pursuant to Section 9.05 hereof;
(9) if other than the principal amount thereof, the
portion of the principal amount of the Debt Securities of the series
which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 7.02 hereof;
(10) any events of default with respect to the Debt
Securities of the particular series, whether or not different from
those set forth herein;
(11) the Trustee with respect to the Debt Securities
of the series;
(12) if other than the Trustee named in the first
paragraph of this Indenture or its successors or assigns, the
designation of the agent to authenticate the Debt Securities of the
series, and the registrar and paying agent, which agents shall be
acceptable to both the Corporation and the Trustee;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on the Debt Securities of the series shall be payable if other
than the currency of the United States of America and the particular
provisions applicable thereto, in accordance with, in addition to or in
lieu of the provisions of Section 2.10;
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(14) if the amount of payments of principal of and any
premium or interest on the Debt Securities of the series may be
determined with reference to an index, the manner in which such amounts
shall be determined;
(15) whether the Debt Securities of the series shall
be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global Security
or Securities;
(16) if other than as provided in Section 2.04, the
manner in which principal of (and premium, if any) and interest, if
any, on the Debt Securities shall be payable;
(17) if other than as provided in Article 12, the
manner in which the Debt Securities of the series are to be defeased;
(18) if the principal of (and premium, if any) and
interest, if any, on the Debt Securities of that series are to be
payable, at the election of the Corporation or a holder of a beneficial
interest in a Global Security thereof, in a currency or currency unit
other than that in which such Debt Securities are denominated or stated
to be payable, in accordance with provisions in addition to or in lieu
of, or in accordance with the provisions of, Section 2.10, the period
or periods within which (including the Election Date), and the terms
and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency or
currency unit in which such Debt Securities are denominated or stated
to be payable and the currency or currency unit in which such Debt
Securities are to be so payable;
(19) the designation of the original Currency
Determination Agent, if any; and
(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution or in any such indenture supplemental
hereto.
Section 2.02. The Debt Securities of each series and the
relevant certificate of authentication shall be in the form (including global
form) approved by or pursuant to a Board Resolution, or established in one or
more indentures supplemental hereto. The Debt Securities shall be authenticated
by the Trustee or an agent designated by the Trustee.
The Debt Securities shall be registered Debt Securities
without coupons. The Debt Securities may have such letters, numbers, or other
marks of identification or designation and such legends or endorsements
typewritten, printed, lithographed, or engraved thereon as the Corporation may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Debt Securities may be listed, or to conform to usage.
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Only such of the Debt Securities as shall bear thereon a
certificate substantially in the form of the certificate of authentication
approved by or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, manually executed by the Trustee or an agent
designated by the Trustee, shall be valid or become obligatory for any purpose
or entitle the holder thereof to any right or benefit under this Indenture, and
such certificate of authentication upon any such Debt Security executed as
aforesaid shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder thereof
is entitled to the benefits of this Indenture.
Section 2.03. The Debt Securities shall be signed in the name
and on behalf of the Corporation by the original or facsimile signature of its
Chairman, Vice Chairman, President, or any Vice President and an original or
facsimile of its corporate seal shall be attested by the original or facsimile
signature of the Secretary or an Assistant Secretary of the Corporation. The
Debt Securities shall then be delivered to the Trustee or an agent for
authentication so designated by the Trustee, and thereupon, as provided in
Section 3.01, the Trustee or an agent designated by the Trustee shall
authenticate and deliver such Debt Securities. In case any officer of the
Corporation who shall have signed any of the Debt Securities shall cease to be
such officer of the Corporation before the Debt Securities so signed shall have
been actually authenticated and delivered, such Debt Securities may nevertheless
be issued, authenticated, and delivered as though the person who signed such
Debt Securities had not ceased to be such officer of the Corporation; and also
any of the Debt Securities may be signed on behalf of the Corporation by such
persons as, at the actual date of the execution of such Debt Securities, shall
be the proper officers of the Corporation, although at the date of the execution
of this Indenture any such person was not such officer.
Section 2.04. Each Debt Security shall be dated the date of
its authentication unless otherwise provided by or pursuant to a Board
Resolution or established in one or more indentures supplemental hereto.
Unless otherwise provided as contemplated by Section 2.01 with
respect to any series of Debt Securities, the person in whose name any Debt
Security is registered in the register at the close of business on any Record
Date with respect to any applicable interest payment date for such Debt Security
shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debt Security upon any registration of
transfer or exchange thereof subsequent to such Record Date and prior to such
interest payment date; provided, however, that if and to the extent the
Corporation shall default in the payment of the interest due on such interest
payment date, the defaulted interest shall be paid to the persons in whose names
outstanding Debt Securities are registered on a subsequent record date for the
payment of such defaulted interest established by notice given by mail by or on
behalf of the Corporation to the holders of Debt Securities not less than
fifteen days preceding such subsequent record date, such subsequent record date
to be not less than five days preceding the date of payment of such defaulted
interest.
Unless otherwise provided as contemplated by Section 2.01 with
respect to any series of Debt Securities, the principal of (and premium, if any)
and interest, if any, on the Debt Securities shall be payable at the office or
agency of the Corporation maintained for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the
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Xxxxxx Xxxxxx xx Xxxxxxx as at the time of payment shall be legal tender for the
payment of public and private debts; provided, however, that interest on the
Debt Securities may be paid by check mailed to the registered holders thereof at
their addresses as the same shall from time to time appear on the register of
the Corporation.
Notwithstanding the foregoing, a holder of $1,000,000 or more
in aggregate principal amount of Debt Securities of any series of Global
Securities (or its equivalent in a Foreign Currency, if the currency unit is a
Foreign Currency), whether having identical or different terms and provisions,
having the same interest payment dates will be entitled to receive interest
payments, other than at Maturity, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing by
the Trustee for the Debt Securities of such series at least 15 days prior to the
applicable interest payment date. In addition to the foregoing, a holder of
$1,000,000 or more in aggregate principal amount of Debt Securities of any
series of Global Securities (or its equivalent in a Foreign Currency, if the
currency unit is a Foreign Currency), whether having identical or different
terms and provisions, having the same Maturity will be entitled to receive
payment at Maturity by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee for the Debt Securities of such series at least 15 days prior to
Maturity; provided; however, that such payments shall be made subject to
applicable laws and regulations and only after surrender of the Global
Securities to the Corporation, the corporate trust office or the Paying Agent or
the London Paying Agent, as applicable, for such Global Securities not later
than one Business Day prior to Maturity. Any wire instructions received by the
Trustee for the Securities of such series shall remain in effect until revoked
by the Holder.
Unless otherwise provided or contemplated by Section 2.01,
every permanent Global Security will provide that interest, if any, payable on
any interest payment date will be paid to the Depositary or its nominee or any
clearing agency or Paying Agent or London Paying Agent or their respective
nominees as the registered owner and holder of the Global Security.
Section 2.05. (a) Pending the preparation of definitive Debt
Securities of any series, the Corporation may execute and cause to be
authenticated and delivered, in accordance with the terms of this Indenture,
temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed, or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Debt Securities in lieu of which
they are issued, and with such appropriate insertions, omissions, substitutions,
and other variations as the officers executing such Debt Securities may
determine, as evidenced by their execution of such Debt Securities.
If temporary Debt Securities of any series are issued, the
Corporation will cause definitive Debt Securities of the same series to be
prepared without unreasonable delay. After the preparation of definitive Debt
Securities, the temporary Debt Securities shall be exchangeable for definitive
Debt Securities of the same series, containing the same terms as the temporary
Debt Securities surrendered, upon surrender of the temporary Debt Securities at
the office or agency of the Corporation in the Borough of Manhattan, The City of
New York, or in such other jurisdiction as may be designated in writing by the
Corporation, as provided in Section 6.02, without charge to the Debt
Securityholder. Upon surrender for cancellation of any one or more temporary
Debt Securities, the Corporation shall execute and cause to be authenticated and
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delivered in exchange therefor an equal aggregate principal amount of definitive
Debt Securities of authorized denominations of the same series and of like
tenor. Until so exchanged, the duly authenticated temporary Debt Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series authenticated and delivered
hereunder.
(b) If the Corporation shall establish pursuant to Section
2.01 that the Debt Securities of a series are to be issued in whole or in part
in the form of one or more Global Securities, then the Corporation shall execute
and the Trustee or an agent designated by the Trustee shall, in accordance with
Section 2.01 and pursuant to an Officer's Order, authenticate and deliver one or
more Global Securities in temporary or permanent form that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
the outstanding Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee or an agent designated by the Trustee to such
Depositary or pursuant to such Depositary's instruction, and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Debt Securities in definitive form, this Global Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such Successor Depositary."
Notwithstanding any other provision of this Section 2.05 or
Section 2.06, unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, a Global Security representing all or a portion
of the Debt Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for the Debt Securities of a
series notifies the Corporation that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the Depositary
for Debt Securities of a series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Corporation shall appoint a successor
Depositary with respect to the Debt Securities of such series. If a successor
Depositary for the Debt Securities of such series is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes
aware of such condition, the Corporation will execute and the Trustee or an
agent designated by the Trustee, upon receipt of an Officer's Order instructing
the Trustee or its agent to authenticate and deliver definitive Debt Securities
of such series, will authenticate and deliver Debt Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Corporation may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Corporation will execute
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and the Trustee or an agent designated by the Trustee, upon receipt of an
Officer's Order instructing the Trustee or its agent to authenticate and deliver
Debt Securities of such series, will authenticate and deliver Debt Securities of
such series in definitive form and in an aggregate principal amount equal to the
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Corporation pursuant to Section 2.01 with
respect to Debt Securities of a series, the Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange, in whole or in part, for Debt Securities of such series in definitive
form on such terms as are acceptable to the Corporation and such Depositary.
Thereupon, the Corporation shall execute and the Trustee or an agent designated
by the Trustee, upon receipt of an Officer's Order, shall authenticate and
deliver, without charge,
(i) to each person specified by the Depositary, a new Debt
Security or Securities of the same series of any authorized
denomination as requested by such person in an aggregate principal
amount equal to and in exchange for such person's beneficial interest
in the Global Security; and
(ii) to the Depositary, a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Debt Securities delivered to holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the persons in whose names such Debt
Securities are so registered.
Section 2.06. The Corporation will keep, at the office or
agency to be maintained by it in the Borough of Manhattan, The City of New York,
or in such other jurisdiction as may be designated in writing by the
Corporation, as provided in Section 6.02, a register for the registration of
transfer of the Debt Securities, as in this Indenture provided (the "register"),
which register shall at all times be open for inspection by the Trustee. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
Upon surrender for registration of transfer of any Debt
Security at either of such offices or agencies, the Corporation shall execute
and cause to be authenticated and delivered a Debt Security or Debt Securities
of the same series for an equal aggregate principal amount, like tenor, and with
a maturity or maturities in accordance with the terms of such Debt Security or
Debt Securities, in such authorized denomination or denominations and registered
in such name or names as may be requested.
Debt Securities in their several authorized denominations are
exchangeable for a Debt Security or Debt Securities of the same series, in
authorized denominations and an equal aggregate principal amount, like tenor,
and with a maturity or maturities in accordance with the terms of such Debt
Security or Debt Securities. Debt Securities to be exchanged as aforesaid
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shall be surrendered for that purpose by the registered holder thereof at such
office or agency and the Corporation shall execute and cause to be authenticated
and delivered, in exchange therefor, the Debt Security or Debt Securities of the
same series in such authorized denomination or denominations as the Debt
Securityholder making the exchange shall have requested and shall be entitled to
receive. The Corporation shall not be required to make any exchange or
registration of transfer of (1) any Debt Security which shall have been
designated for redemption in whole or in part, except, in the case of any Debt
Security to be redeemed in part, the portion thereof not to be so redeemed or
(2) any Debt Security for a period of 15 days next preceding any selection of
Debt Securities for redemption.
All Debt Securities presented or surrendered for registration
of transfer, exchange, or payment shall (if so required by the Corporation, the
Trustee, or any agent) be accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Corporation, the Trustee, or such agent,
duly executed by the registered holder or by his attorney duly authorized in
writing.
No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any stamp tax or other governmental charge payable in
connection therewith.
The Corporation, its agents, and the Trustee may deem and
treat the person in whose name any Debt Security is registered as the absolute
owner of such Debt Security (whether or not such Debt Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for all
purposes whatsoever (subject to the provisions set forth herein relating to
Record Dates and record dates for the payment of any defaulted interest), and
the Corporation, its agents, and the Trustee shall not be affected by any notice
to the contrary.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the
Corporation, the Trustee, and any agent of the Corporation or the Trustee as the
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as holder of any Debt Security.
Section 2.07. In case any Debt Security shall become mutilated
or be destroyed, lost or stolen, and subject to the conditions hereinafter set
forth, the Corporation in the case of a mutilated Debt Security shall, and in
the case of a lost, stolen, or destroyed Debt Security may, in its discretion,
execute, and thereupon the Trustee or an agent designated by the Trustee shall
authenticate and deliver, or cause to be authenticated and delivered, a new Debt
Security of the same series, tenor, and principal amount and bearing a different
number not contemporaneously outstanding, in exchange and substitution for and
upon cancellation of the mutilated Debt Security or in lieu of and substitution
for the Debt Security so destroyed, lost, or stolen; provided, however, that if
any such mutilated, destroyed, lost, or stolen Debt Security shall have become
payable upon the maturity thereof, the Corporation may, instead of issuing a
substitute Debt Security, pay or authorize the payment of such Debt Security
without requiring the
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surrender thereof (except in the case of a mutilated Debt Security). The
applicant for any substitute Debt Security or for payment of any such mutilated,
destroyed, lost, or stolen Debt Security shall furnish to the Corporation, the
Trustee, or any agent designated by the Trustee evidence satisfactory to them,
in their discretion, of the ownership of and the destruction, loss, or theft of
such Debt Security and shall furnish to the Corporation and the Trustee or any
agent designated by the Trustee indemnity satisfactory to them, in their
discretion, and, if required, shall reimburse the Corporation, the Trustee, or
any agent designated by the Trustee for all expenses (including counsel fees and
expenses) in connection with the preparation, issue, and authentication of such
substitute Debt Security or the payment of such mutilated, destroyed, lost, or
stolen Debt Security, and shall comply with such other reasonable regulations as
the Corporation, the Trustee, or any agent designated by the Trustee, or any of
them, may prescribe. Any such new Debt Security delivered pursuant to this
Section 2.07 shall constitute an additional contractual obligation on the part
of the Corporation, whether or not the allegedly destroyed, lost, or stolen Debt
Security shall be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other Debt
Securities of the same series issued hereunder.
Section 2.08. Subject to the provisions set forth herein
relating to Record Dates and record dates for the payment of any defaulted
interest, each Debt Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of,
any other Debt Security of the same series shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Section 2.09. All Debt Securities included in any one series
need not be issued by the Corporation at the same time. Unless otherwise
provided, a series may be reopened for issuances of additional securities in
such securities upon delivery of an Officer's Order to the Trustee.
Section 2.10. Unless otherwise specified in accordance with
Section 2.01 with respect to any series of Debt Securities, the following
provisions shall apply:
(a) subject to paragraph (b) below, the principal of,
premium, if any, and interest on Debt Securities of any series denominated in a
Foreign Currency or currency unit will be payable by the Corporation in Dollars
based on the equivalent of that Foreign Currency or currency unit converted into
Dollars in the manner described in paragraphs (c) and (d) below.
(b) It may be provided pursuant to Section 2.01 with
respect to Debt Securities of any series denominated in a Foreign Currency or
currency unit that holders of beneficial interests in a Debt Security shall have
the option, subject to paragraph (d) below, to receive payments of principal of,
premium, if any, and interest on such Debt Securities in such Foreign Currency
or currency unit by delivering to the Trustee (or to any duly appointed Paying
Agent or London Paying Agent) for such Debt Securities of that series a written
election, to be in form and substance satisfactory to such Trustee (or to any
such Paying Agent or London Paying Agent), not later than the close of business
on the Election Date immediately preceding the applicable payment date. If a
holder so elects to receive such payments in such Foreign Currency or currency
unit, such election will remain in effect for such holder until changed by such
holder by written notice to the Trustee (or to any such Agent) for the Debt
Securities of
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that series; provided, however, that any such change must be made not later than
the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date;
and provided, further, that no such change or election may be made with respect
to payments to be made on any Debt Security of such series with respect to which
an Event of Default has occurred, the Corporation has exercised any defeasance,
satisfaction or discharge options pursuant to Article Twelve or notice of
redemption has been given by the Corporation pursuant to Article Four. If any
holder makes any such election, such election will not be effective as to any
transferee of such Holder and such transferee shall be paid in Dollars unless
such transferee makes an election as specified above. Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee (or to any duly appointed Paying Agent or London Paying Agent) for the
Debt Securities of such series not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in Dollars.
(c) With respect to any Debt Securities of any series
denominated in a Foreign Currency or currency unit and payable in Dollars, the
amount of Dollars so payable will be determined by the Currency Determination
Agent based on the highest indicative quotation in The City of New York selected
by the Currency Determination Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date. Such
selection shall be made from among the quotations appearing on the bank
composite or multi-contributor pages of three recognized foreign exchange
dealers (one of which may be the Currency Determination Agent). The first three
such foreign exchange dealers selected by the Currency Determination Agent which
are offering quotes on the specified Foreign Currency shall be used. If such
quotations are unavailable from at least three recognized foreign exchange
dealers payments shall be made in the Foreign Currency or currency unit. All
currency exchange costs associated with any payment in Dollars on any such
Registered Securities will be borne by the holder thereof by deductions from
such payment.
(d) If a Conversion Event occurs with respect to a
Foreign Currency or currency unit in which Debt Securities of any series are
payable, then with respect to each date for the payment of principal of,
premium, if any, and interest on the Debt Securities of that series occurring
after the last date on which such Foreign Currency or currency unit was used,
the Corporation may make such payment in Dollars. The Dollar amount to be paid
by the Corporation to the Trustee for the Debt Securities of such series and by
such Trustee or any Paying Agent for the Debt Securities of such series to the
holders of such Debt Securities with respect to such payment date shall be
determined by the Currency Determination Agent on the basis of the Market
Exchange Rate as of the second Business Day preceding the applicable payment
date or, if such Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate, or as otherwise established
pursuant to Section 2.01 with respect to such series of Debt Securities;
provided; however, that if a Conversion Event occurs with respect to the euro,
the equivalent of the euro in Dollars as of any date shall be determined by the
Currency Determination Agent on the following basis: The Component Currencies of
the euro for this purpose shall be the currency amounts that were components of
the euro as of the last date on which the ECU was used in the European Monetary
System. The equivalent of the euro in Dollars shall be calculated by aggregating
the Dollar equivalents of the Component Currencies. The Dollar equivalent of
each of the Component Currencies shall be determined by the applicable Paying
Agent, London Paying Agent or the Currency
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Determination Agent on the basis of the most recently available Market Exchange
Rates for such components. Any payment in respect of such Debt Security made
under such circumstances in Dollars will not constitute an Event of Default
hereunder.
(e) For purposes of this Indenture the following
terms shall have the following meanings:
A "Component Currency" shall mean any currency
which is a component currency of any currency unit.
"Election Date" shall mean, for the Debt Securities
of any series, the date specified pursuant to Section
2.01(18).
(f) Notwithstanding any other provisions of this
Section 2.10, the following shall apply: (i) if the official unit of any
Component Currency is altered by way of combination or subdivision, the number
of units of that currency as a component shall be divided or multiplied in the
same proportion, (ii) if two or more Component Currencies are consolidated into
a single currency, the amounts of those currencies as components shall be
replaced by an amount in such single currency equal to the sum of the amounts of
the consolidated Component Currencies expressed in such a single currency, (iii)
if any Component Currency is divided into two or more currencies, the amount of
that original Component Currency as a component shall be replaced by the amounts
of such two or more currencies having an aggregate value on the date of division
equal to the amount of the former Component Currency immediately before such
division and (iv) in the event of an official redenomination of any currency
(including, without limitation, a currency unit), the obligations of the
Corporation to make payments in or with reference to such currency on the Debt
Securities of any series shall, in all cases, be deemed immediately following
such redenomination to be obligations to make payments in or with reference to
that amount of redenominated currency representing the amount of such currency
immediately before such redenomination.
(g) All determinations referred to in this
Section 2.10 made by the Currency Determination Agent shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the holders of the applicable Debt
Securities. The Currency Determination Agent shall promptly give written notice
to the Trustee for the Securities of such series of any such decision or
determination. The Currency Determination Agent shall have no liability for any
determinations referred to in this Section 2.10 made by it.
(h) The Trustee for the Debt Securities of a
particular series shall be fully justified and protected in relying and acting
upon information received by it from the Corporation and the Currency
Determination Agent with respect to any of the matters addressed in or
contemplated by this Section 2.10 and shall not otherwise have any duty or
obligation to determine such information independently.
Section 2.11. If and so long as the Debt Securities of any
series (a) are denominated in a currency unit or a currency other than Dollars
or (b) may be payable in a currency unit or a currency other than Dollars, or so
long as it is required under any other
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provision of this Indenture, then the Corporation shall maintain with respect to
each such series of Securities, or as so required, a Currency Determination
Agent. The Corporation shall cause the Currency Determination Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 2.10 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 2.10.
If the Currency Determination Agent shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of the
Currency Determination Agent for any cause, with respect to the Debt Securities
of one or more series, the Corporation, by an Officer's Order, shall promptly
appoint a successor Currency Determination Agent or Currency Determination
Agents with respect to the Debt Securities of that or those series (it being
understood that any such successor Currency Determination Agent may be appointed
with respect to the Debt Securities of one or more or all of such series and
that at any time there shall only be one Currency Determination Agent with
respect to the Debt Securities of any particular series).
No resignation of the Currency Determination Agent and no
appointment of a successor Currency Determination Agent pursuant to this Section
shall become effective until the acceptance of appointment by the successor
Currency Determination Agent as evidenced by a written instrument delivered to
the Corporation and the Trustee of the appropriate series of Debt Securities
accepting such appointment executed by the successor Currency Determination
Agent.
Section 2.12. Subject to Section 2.10, each reference to any
currency or currency unit in any Debt Security, or in the Board Resolution or
supplemental indenture relating thereto, shall mean only the referenced currency
or currency unit and no other currency or currency unit.
The Trustee and each Paying Agent and London Paying Agent
shall segregate moneys, funds and accounts held by the Trustee and such Paying
Agent or London Paying Agent in one currency or currency unit from any moneys,
funds or accounts held in any other currencies or currency units,
notwithstanding any provision herein which would otherwise permit the Trustee or
any Paying Agent or London Paying Agent to commingle such amounts.
Whenever any action or act is to be taken hereunder by the
holders of Debt Securities denominated in a Foreign Currency or currency unit,
then for purposes of determining the principal amount of Debt Securities held by
such holders, the aggregate principal amount of the Debt Securities denominated
in a Foreign Currency or currency unit shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the basis of a spot
rate of exchange specified to the Trustee for such series in an Officers'
Certificate for such Foreign Currency or currency unit into Dollars as of the
date the taking of such action or act by the holders of the requisite percentage
in principal amount of the Debt Securities is evidenced to such Trustee.
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ARTICLE THREE
ISSUE OF DEBT SECURITIES
Section 3.01. At any time and from time to time after the
execution and delivery of this Indenture the Corporation may deliver to the
Trustee Debt Securities duly executed by the proper officers of the Corporation.
The Trustee or an agent designated by the Trustee shall authenticate and deliver
the Debt Securities pursuant to an Officer's Order.
In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee or any agent designated by the Trustee shall be entitled
to receive, and shall be fully protected in relying upon:
(1) a copy of any Board Resolution by or pursuant to which the
terms of such series were established and, if applicable, an appropriate record
of any action taken pursuant to such resolution;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate prepared in accordance with
Section 15.04 and which shall also state that the Corporation is not in default
under the provisions of this Indenture; and
(4) an Opinion of Counsel prepared in accordance with
Section 15.04 which shall also state:
(a) that the form of such Debt Securities has been
established by or pursuant to a Board Resolution or by a supplemental
indenture in conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been
established by or pursuant to a Board Resolution or by a supplemental
indenture in conformity with the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and
delivered by the Trustee or any agent designated by the Trustee and
issued by the Corporation in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid, and
binding obligations of the Corporation, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization, and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles; and
(d) that all laws and requirements in respect of the
execution and delivery by the Corporation of the Debt Securities have
been complied with and that authentication and delivery of the Debt
Securities by the Trustee or any agent designated by the Trustee will
not violate the terms of this Indenture.
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Notwithstanding the provisions of this Section 3.01, if all
Debt Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution, Officers' Certificate,
or the Opinion of Counsel otherwise required pursuant to this Section at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered at or prior to the time of authentication upon original
issuance of the first Debt Security of such series to be issued.
After any such first delivery of Debt Securities of a series,
any separate request by the Corporation that the Trustee authenticate Debt
Securities of such series for original issue will be deemed to be a
certification by the Corporation that all conditions precedent provided for in
this Indenture relating to authentication and delivery of such Debt Securities
continue to have been complied with.
The Trustee shall be entitled pursuant to Section 15.04 to
request such additional information and shall have the right to decline to
authenticate and deliver any Debt Securities under this Section 3.01 if the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Trustee in good faith by its Board of Directors or trustees,
executive committee, or a trust committee of directors or trustees and/or vice
presidents or assistant vice presidents shall determine that such action would
expose the Trustee to personal liability to existing Debt Securityholders or
would adversely affect the Trustee's rights, duties, obligations, or immunities
under this Indenture.
ARTICLE FOUR
REDEMPTION OF DEBT SECURITIES
Section 4.01. Debt Securities of any series which are
redeemable pursuant to their terms shall be redeemable in accordance with the
terms and provisions thereof and in accordance with this Article Four. The
election of the Corporation to redeem all or part of the Debt Securities of any
series shall be evidenced by a Board Resolution.
Section 4.02 In the event of redemption at any time of all or
a part of any series of Debt Securities, the Corporation shall, at least 60 days
prior to the redemption date (unless a shorter notice shall be consented to by
the Trustee), give written notice to the Trustee of the tenor and the principal
amount of the Debt Securities of such series to be redeemed and specifying the
date on which it is proposed that notice of such redemption will be mailed and
the date of redemption. After receipt of such notice, if such redemption is of
only a part of a series of Debt Securities, the Trustee shall select, in any
manner deemed by the Trustee to be fair and appropriate, the Debt Securities or
portions thereof (in multiples of $1,000 or such other authorized amounts) to be
redeemed and shall notify the Corporation of the particular Debt Securities or
portions thereof selected for redemption.
On or prior to the date fixed for redemption specified in the
notice of redemption given as provided in this Section 4.02, the Corporation
will deposit with the Trustee or with any paying agent (or if the Corporation is
acting as its own paying agent, segregate and hold in trust as provided in
Section 6.03) an amount of money sufficient to redeem on the date fixed for
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redemption all the Debt Securities called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption.
Section 4.03. In case the Corporation shall elect to redeem
any Debt Securities or any portion thereof pursuant to this Article Four, it
shall give notice of its election to do so by mailing written notice, first
class postage prepaid, at least 30 days prior to the redemption date, to all
holders of Debt Securities to be redeemed, addressed to them at their respective
addresses as the same shall then appear in the register of the Corporation. Any
notice which shall be mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder shall receive such
notice. Failure to mail such notice, or any defect in the notice mailed, to the
holder of any Debt Security designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Debt Security. The notice to each such holder shall state such election on the
part of the Corporation, the redemption date, the place of payment and
redemption, the redemption price, and, in case of partial redemption of a series
of Debt Securities, the particular Debt Securities of such series to be redeemed
in whole or in part and, if a portion of any Debt Security is to be redeemed,
the amount of such portion, and that the interest, if any, on the Debt
Securities or portions thereof specified in such notice for redemption shall
cease to accrue on the redemption date.
Notice having been so given by mail, the Debt Securities or
portions thereof so designated for redemption shall, on the redemption date
specified in such notice, become due and payable at the redemption price
thereof, determined as provided in the Board Resolution or supplemental
indenture establishing such series; provided, however, that if the redemption
date shall be the same as an interest payment date, such interest shall be
payable to the holders of the Debt Securities on the applicable Record Date; and
from and after the redemption date so specified (unless the Corporation shall
default in the payment of the redemption price) interest, if any, on such series
of Debt Securities or portions thereof shall cease to accrue and, upon
presentation of the Debt Securities of such series at said place of payment and
redemption in accordance with said notice, the Debt Securities of such series or
portions thereof shall be paid by the Corporation at the redemption price
aforesaid. If the Debt Securities of such series or portions thereof shall not
be so paid upon presentation thereof, the principal and the premium, if any
(and, to the extent that interest thereon shall be legally enforceable, the
interest), included in such redemption price shall, until paid, bear interest
from the redemption date at the rate expressed in the Debt Securities.
Upon the partial redemption of any Debt Security of an
authorized denomination, and upon the surrender thereof to the Trustee or any
paying agent and either payment by the Trustee or any paying agent of the
redemption price of the portion thereof called for redemption or the receipt by
the Trustee or any paying agent of evidence satisfactory to it of the payment of
such redemption price, the Trustee or any agent designated by the Trustee shall
authenticate and deliver to or on the order of the registered holder of such
Debt Security, without charge, a new Debt Security or Debt Securities, of the
same series, of like tenor, and in an aggregate principal amount equal to the
unredeemed portion of the Debt Security or Debt Securities so surrendered, each
new Debt Security to be in such authorized denomination as such registered
holder may elect. If a Global Security is so surrendered, such new Debt Security
so issued shall be a new Global Security.
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Section 4.04. All Debt Securities redeemed and paid pursuant
to the provisions of this Article Four shall be canceled and disposed of as
provided in Section 15.05, and, except in the case of partial redemption of any
Debt Security, no Debt Security shall be issued under this Indenture in lieu
thereof.
ARTICLE FIVE
SINKING FUNDS
Section 5.01. The provisions of this Article Five shall be
applicable to any sinking fund established in or pursuant to a Board Resolution
or one or more indentures supplemental hereto for the retirement of Debt
Securities of any series except as otherwise specified or contemplated by
Section 2.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 5.02. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 5.02. The Corporation (1) may deliver outstanding Debt
Securities of a series (other than any previously called for redemption) that
have been held by the Corporation as treasury securities and (2) may apply as a
credit Debt Securities of a series which have been redeemed either at the
election of the Corporation pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series; provided that such Debt Securities
have not been previously so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Debt Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
Section 5.03. Not less than 60 days prior to each sinking fund
payment date for any series of Debt Securities, the Corporation will deliver to
the Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash, and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debt Securities of that series pursuant to Section 5.02 and will also deliver to
the Trustee any Debt Securities to be so credited which have not theretofore
been delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Debt Securities of such series to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 4.03. Such notice having
been duly given, the
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redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 4.02 and 4.03.
ARTICLE SIX
PARTICULAR COVENANTS OF THE CORPORATION
The Corporation hereby covenants and agrees for the benefit of
each series of Debt Securities as follows:
Section 6.01. The Corporation will duly and punctually pay the
principal of (and premium, if any, on) each of the Debt Securities of such
series, and the interest, if any, which shall have accrued thereon, at the dates
and place and in the manner mentioned in such Debt Security, according to the
true intent and meaning thereof. The interest, if any, on any Debt Security of
such series shall be payable to the registered holder thereof as shown on the
register of the Corporation and as provided in Section 2.04. When and as paid,
all Debt Securities of such series shall be canceled and disposed of as provided
in Section 15.05, and no Debt Securities of such series shall be issued under
this Indenture in lieu thereof.
Section 6.02. If Debt Securities of a series are issuable only
as Global Securities, the Corporation will maintain in each Place of Payment for
that series an office or agency where Debt Securities of that series may be
presented or surrendered for payment, an office or agency where Debt Securities
of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Corporation with respect to the Debt
Securities of that series and this Indenture may be served. If Debt Securities
of a series are issuable in definitive form, the Corporation will maintain (A)
an office or agency (which may be the same office or agency) in a Place of
Payment for that series in the United States where any Global Securities of that
series may be presented or surrendered for payment, where any Global Securities
of that series may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Corporation in respect of the Debt Securities of that
series and this Indenture may be served and where definitive securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Debt Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Debt Securities of that
series are listed on the Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the
Corporation will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Global Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Corporation in respect of the Debt Securities of that series and this Indenture
may be served. The Corporation will give prompt written notice to the Trustee
for the Debt Securities of that series of the location, and any change in the
location, of any such office or agency. If at any
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time the Corporation shall fail to maintain any such required office or agency
in respect of any series of Debt Securities or shall fail to furnish the Trustee
for the Debt Securities of that series with the address thereof, such
presentations (to the extent permitted by law), and surrenders of Debt
Securities of that series may be made and notices and demands may be made or
served at the corporate trust office of such Trustee, except that securities
issued in definitive form of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the Debt
Security, and the Corporation hereby appoint the same as their agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal (and premium, if any) or interest, if
any, on securities issued in definitive form shall be made at any office or
agency of the Corporation in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States. Payments will not be made in respect of securities issued
in definitive form or coupons appertaining thereto pursuant to presentation to
the Corporation or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal of (and premium, if any) and
interest, if any, on any securities issued in definitive form denominated and
payable in Dollars will be made at the office of the Corporation's Paying Agent
in the United States, if, and only if, payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for that purpose by the
Corporation in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions and the Corporation
has delivered to the Trustee an Opinion of Counsel to that effect.
The Corporation may also from time to time designate one or
more other offices or agencies (in or outside the Place of Payment) where the
Debt Securities of one or more series may be presented or surrendered for any or
all of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain an office or agency in each Place of Payment for such purpose. The
Corporation will give prompt written notice to the Trustee for the Debt
Securities of each series so affected of any such designation or rescission and
of any change in the location of any such office or agency.
Section 6.03. (a) The Corporation agrees, for the benefit of
the holders from time to time of the Debt Securities, that, until all of the
Debt Securities of the applicable series are no longer outstanding or until
moneys for the payment of all of the principal of and interest on all
outstanding Debt Securities of such series shall have been made available at the
principal office of the Paying Agents, whichever occurs earlier, there shall at
all times be a Paying Agent hereunder. The Corporation agrees, for the benefit
of the holders from time to time of the Debt Securities of any series
denominated in euros, that, until all of the Debt Securities of the applicable
series are no longer outstanding or until moneys for the payment of all of the
principal of and interest on all outstanding Debt Securities of such series
denominated in euros shall have been made available at the principal office of
the London Paying Agent, whichever occurs earlier, there shall at all times be a
London Paying Agent hereunder. The Corporation hereby appoints Bank One Trust
Company, N.A., at present having an office at 000 X.00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, as its principal paying agent in New York, BNP Paribas, Securities
Services, Luxemburg Branch, at present having an office at 00, xxxxxx xx xx
Xxxxx Xxxxx, 00000, Xxxxxxxxxx, and, to the extent any series of Debt Securities
are denominated in euros as
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provided in Section 2.01, Bank One NA, London Branch, at present having an
office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, as London Paying Agent in
respect of the Debt Securities, upon the terms and subject to the conditions
herein and therein set forth, it being understood that in their capacity as
Paying Agents hereunder, Bank One Trust Company, N.A., BNP Paribas Securities
Services, Luxemburg Branch, and Bank One NA, London Branch, will perform their
duties exclusively through their offices in New York, Luxembourg and London,
respectively. The Paying Agents and London Paying Agent shall arrange for the
payment, from funds furnished by the Corporation to the Paying Agents or London
Paying Agent, as applicable, of the principal of and interest on each series of
Debt Securities on the date such payments become due and payable. With respect
to each series of Debt Securities for which Bank One Trust Company, N.A., BNP
Paribas Luxembourg and Bank One NA, London Branch, serve as Paying Agents or
London Paying Agent, such Paying Agent or London Paying Agent shall have the
powers and authority granted to and conferred upon them herein and in the notes
or other instrument evidencing such series of Debt Securities.
(b) Until all of the Debt Securities are no longer
outstanding, the Corporation shall appoint a Calculation Agent. The Corporation
hereby appoints Bank One Trust Company, N.A, at present having an office at 000
X.00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, to act as Calculation Agent with respect to
each series of Debt Securities issued in Dollars hereunder and appoints Bank One
NA, London Branch, at present having an office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, as London Calculation Agent with respect to each series of Debt
Securities denominated in euros, upon the terms and subject to the conditions
herein set forth. The Calculation Agent and the London Calculation Agent shall
calculate the interest applicable to any series of Debt Securities in the manner
established pursuant to Section 2.01 hereof and in such notes or other
instrument evidencing such series of Debt Securities and shall undertake all
other services hereinafter described upon the terms and subject to the
conditions herein, including, but not limited to, complying with the notice
provisions of Section 6.03(f) hereof. The Calculation Agent and the London
Calculation Agent shall have the powers and authority granted to and conferred
upon it herein and in the notes or other instrument evidencing such series of
Debt Securities.
(c) Each of the Paying Agents, the London Paying
Agent, the Calculation Agent and the London Calculation Agent is herein referred
to as an "Agent" and they are referred to collectively as the "Agents". Prior to
issuing any series of Debt Securities, the Corporation will cause such Agents to
execute and deliver to the Corporation (with a copy to the Trustee unless the
Trustee or the Paying Agent or the Calculation Agent is also such Agent) a
written instrument in which such Agent shall agree to act as such hereunder,
subject to the provisions of this Article. The Corporation may also serve as
Paying Agent, London Paying Agent, Calculation Agent or London Calculation Agent
or appoint any of its affiliates to serve as Paying Agent, London Paying Agent,
Calculation Agent or London Calculation Agent. The Corporation will give to the
Trustee (unless the Trustee, the Paying Agent or the London Calculation Agent is
also such Agent) written notice of any change in the location of any office or
agency of the Agents hereunder. The Corporation shall have the right to vary or
terminate the appointment of any such office or agency.
(d) Each Agent accepts its obligations set forth
herein upon the terms and conditions hereof and thereof. If an Agent shall
change its specified office, it shall give to
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the Corporation and the Trustee (unless the Trustee, the Paying Agent or the
Calculation Agent is also such Agent) not less than 45 days' prior written
notice to that effect giving the address of the new office.
(e) (i) The Calculation Agent or the London
Calculation Agent, as applicable, shall make all calculations with respect to
the rate of interest on floating interest rate notes with respect to each series
of Debt Securities and shall notify (x) the Corporation and the Trustee (if
different from the Calculation Agent) in accordance with Section 15.07, and any
Paying Agent or London Paying Agent, as applicable, with respect to such series
in accordance with Section 6.03(f) and to any stock exchange on which such
series of Debt Securities are at the relevant time listed, not later than 12:00
p.m. (London time, in the case of Debt Securities denominated in euros and 12:00
p.m. New York City time, in the case of Debt Securities denominated in Dollars)
on the date on which the rate of interest is to be determined with respect to
floating interest rate notes as established pursuant to Section 2.01 and (y) to
the registered holders of any floating rate notes in accordance with Section
15.07 as soon as possible after their determination but in no event later than
the second Business Day thereafter.
(ii) The Calculation Agent or the London
Calculation Agent, as applicable, shall make all calculations with respect to
the amount of interest and/or principal due on each interest payment date or at
Maturity, as established pursuant to Section 2.01, with respect to each series
of Debt Securities and shall notify the Corporation and the Trustee (if
different from the Calculation Agent) in accordance with Section 15.07 and any
Paying Agent or London Paying Agent, as applicable, in accordance with Section
6.03(f), not later than 12:00 p.m., London time, in the case of Debt Securities
denominated in euros and 12:00 p.m. New York City time, in the case of Debt
Securities denominated in Dollars, of such amount on the second Business Day
prior to the date on which such interest and/or principal is due and payable.
(f) Any notice or other communication required to be
given hereunder shall be delivered in person, sent by letter or telecopier or
communicated by telephone (with prompt written confirmation by telecopy) to the
Paying Agents or London Paying Agent at the addresses specified in the written
instrument delivered to the Corporation by such Agent in accordance with Section
6.03(c). Any notice hereunder given by letter, telecopy or telex shall be deemed
to have been received when it would have been received in the ordinary course of
post or transmission, as the case may be.
(g) If the Corporation shall act as its own Paying
Agent or London Paying Agent with respect to any series of Debt Securities, it
will, on or before each due date of the principal of or interest on such series,
set aside, segregate and hold in trust for the benefit of the holders of the
Debt Securities of such series a sum sufficient to pay such principal or
interest so becoming due. The Corporation will promptly notify the Trustee of
any failure to take such action.
(h) Anything in this Section to the contrary
notwithstanding, the Corporation may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of Debt
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Corporation or any
Paying Agent or London Paying Agent hereunder, as required by this Section, such
sums to
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be held by the Trustee upon the same trusts as those upon which such sums were
held by the Corporation or such Paying Agent or London Paying Agent.
(i) In order to provide for the payment of the
principal of and interest on the Debt Securities of any series as the same shall
become due and payable on any payment date, the Corporation hereby agrees to pay
to such account or at such offices of any Paying Agent in New York or Luxembourg
or as such Paying Agent shall specify in writing to the Corporation not less
than five Business Days prior to the payment date, in the currency of payment
with respect to the Debt Securities of such series as designated pursuant to
Section 2.01, on each interest payment date and at Maturity of the Debt
Securities of such series or any date fixed for redemption of the Debt
Securities of such series (in each case determined in accordance with the terms
and conditions applicable to such series), in immediately available funds
available on such interest payment date or at Maturity, as the case may be, in
an aggregate amount which (together with any funds then held by the Paying Agent
and available for the purpose) shall be sufficient to pay the entire amount of
the principal of and/or interest, as applicable, on the Debt Securities of such
series becoming due on such interest payment date or at Maturity, and the Paying
Agent shall hold such amount in trust and apply it to the payment of any such
principal or interest on such interest payment date or at Maturity. Unless
otherwise specified as provided above in this Section 6.03(i) or Section
6.03(j), such aggregate amount shall be paid to the account of the Paying Agent
in immediately available funds no later than 11:00 a.m. (Paying Agents' time) on
the interest payment date or at Maturity, as the case may be. In the event any
Paying Agent or London Paying Agent is not also the Trustee, the Corporation
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree (and by its execution of this Indenture,
the London Paying Agent hereby agrees) with the Trustee, subject to the
provisions of this Section 6.03 and of Section 12.03, (1) that such Paying Agent
and London Paying Agent shall hold all sums held by such Paying Agent or London
Paying Agent for the payment of the principal of (and premium, if any) or
interest, if any, on the Debt Securities of such series in trust for the benefit
of the holders of the Debt Securities of such series until such sums shall be
paid out to the holders of the Debt Securities of such series or otherwise as
herein provided, (2) that such Paying Agent or London Paying Agent shall give to
the Trustee notice of any default by the Corporation or any other obligor upon
the Debt Securities of such series in the making of any deposit with such Paying
Agent and London Paying Agent for the payment of principal (and premium, if any)
or interest, if any, which shall have become payable and of any default by the
Corporation or any other obligor upon the Debt Securities of such series in
making any such payment, and (3) that such Paying Agent and London Paying Agent
shall, at any time during the continuance of any such default, upon the written
request of the Trustee, deliver to the Trustee all sums so held in trust by it.
(j) Anything herein to the contrary notwithstanding,
the Corporation shall not later than 10.00 a.m. London time on each date on
which any payment of principal (and premium, if any) or interest in respect of
any of series of Debt Securities denominated in euros becomes due and payable
transfer to Bank One, NA Frankfurt A/C No. 1001701 or such other account as the
London Paying Agent may designate in writing in advance to the Corporation and
the Trustee such amount of euros as shall be sufficient for the purposes of the
payment of principal (and premium, if any) or interest (together with any funds
then held by the London Paying Agent and available for the purpose) in
immediately available funds or in such funds and at such times (being not later
than 10.00 a.m. London time on the relevant due date, or if the due
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date is not a Business Day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) System is open, on the immediately
following Business Day). The Corporation shall ensure that not later than the
second Business Day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) System is open immediately preceding the
date on which any payment is to be made to the London Paying Agent, the London
Paying Agent shall receive a copy of an irrevocable payment instruction to the
bank through which the payment is to be made.
(k) The foregoing provisions of this Section 6.03 are
subject to the provisions of Sections 12.04, 12.05 and 12.06.
Section 6.04. (a) After the date of the execution and delivery
of this Indenture and so long as any Debt Securities shall be outstanding, the
Corporation will not pledge or otherwise subject to any lien (any such pledge or
lien being hereinafter referred to as a "Lien") any of its property or assets to
secure indebtedness for money borrowed, incurred, issued, assumed or guaranteed
by the Corporation without thereby expressly securing the due and punctual
payment of the principal of and interest on the Debt Securities equally and
ratably with any and all other obligations and indebtedness secured by such
Lien, so long as any such other obligations and indebtedness shall be so
secured; provided, however, that this restriction shall not prohibit or
otherwise restrict:
(i) the Corporation from creating,
incurring or suffering to exist upon any of its property or assets any Lien in
favor of any subsidiary of the Corporation;
(ii) the Corporation (A) from creating,
incurring or suffering to exist a purchase money Lien upon any such property,
assets, capital stock or indebtedness acquired by the Corporation prior to, at
the time of, or within one year after (1) in the case of physical property or
assets, the later of the acquisition, completion of construction (including any
improvements on existing property) or commencement of commercial operation of
such property or (2) in the case of shares of capital stock, indebtedness or
other property or assets, the acquisition of such shares of capital stock,
indebtedness, property or assets, (B) from acquiring property or assets subject
to Liens existing thereon at the date of acquisition thereof, whether or not the
indebtedness secured by any such Lien is assumed or guaranteed by the
Corporation, or (C) from creating, incurring or suffering to exist Liens upon
any property of any Person, which Liens exist at the time any such Person is
merged with or into or consolidated with the Corporation (or becomes a
subsidiary of the Corporation) or which Liens exist at the time of a sale or
transfer of the properties of any such Person as an entirety or substantially as
an entirety to the Corporation;
(iii) the Corporation from creating,
incurring or suffering to exist upon any of its property or assets Liens in
favor of the United States of America or any State thereof or the District of
Colombia, or any agency, department or other instrumentality thereof, to secure
progress, advance or other payments pursuant to any contract or provision of any
statute (including maintaining self-insurance or participating in any fund in
connection with worker's compensation, disability benefits, unemployment
insurance, old age pensions or other types of social benefits, or joining in any
other provisions or benefits available to companies participating in any such
arrangements);
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(iv) the Corporation from creating,
incurring or suffering to exist upon any of its property or assets Liens
securing the performance of letters of credit, bids, tenders, sales contracts,
purchase agreements, repurchase agreements, reverse repurchase agreements,
bankers' acceptances, leases, surety and performance bonds, and other similar
obligations incurred in the ordinary course of business;
(v) the Corporation from creating, incurring
or suffering to exist Liens upon any real property acquired or constructed by
the Corporation primarily for use in the conduct of its business;
(vi) the Corporation from entering into any
arrangement with any Person providing for the leasing by the Corporation of any
property or assets, which property or assets have been or will be sold or
transferred by the Corporation to such Person with the intention that such
property or assets will be leased back to the Corporation, if the obligations in
respect of such lease would not be included as liabilities on a consolidated
balance sheet of the Corporation;
(vii) the Corporation from creating,
incurring or suffering to exist upon any of its property or assets Liens to
secure non-recourse debt in connection with the Corporation engaging in any
leveraged or single-investor or other lease transactions, whether (in the case
of Liens on or relating to leases or groups of leases or the particular
properties subject thereto) such Liens are on the particular properties subject
to any leases involved in any of such transactions and/or the rental or other
payments or rights under such leases or, in the case of any group of related or
unrelated leases, on the properties subject to the leases comprising such group
and/or on the rental or other payments or rights under such leases, or on any
direct or indirect interest therein, and whether (in any case) (A) such Liens
are created prior to, at the time of, or at any time after the entering into of
such lease transactions and/or (B) such leases are in existence prior to, or be
entered into by the Corporation at the time of or at any time after, the
purchase or other acquisition by the Corporation of the properties subject to
such leases;
(viii) the Corporation from creating,
incurring or suffering to exist (A) other consensual Liens in the ordinary
course of business of the Corporation that secure indebtedness that, in
accordance with generally accepted accounting principles, would not be included
in total liabilities as shown on the Corporation's consolidated balance sheet,
or (B) Liens created by the Corporation in connection with any transaction
intended by the Corporation to be a sale of property or assets of the
Corporation, provided that such Liens are upon any or all of the property or
assets intended to be sold, the income from such property or assets and/or the
proceeds of such property or assets;
(ix) the Corporation from creating,
incurring or suffering to exist Liens on property or assets financed through
tax-exempt municipal obligations, provided that such Liens are only on the
property or assets so financed;
(x) any extension, renewal or replacement
(or successive extensions, renewals or replacements), in whole or in part, of
any of the foregoing; provided, however, that any such extension, renewal or
replacement shall be limited to all or a part of the
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property or assets (or substitutions therefor) which secured the Lien so
extended, renewed or replaced (plus improvements on such property); and
(xi) the Corporation from creating,
incurring or suffering to exist any other Lien not otherwise permitted by any of
the foregoing clauses (i) through (ix) above if the aggregate amount of all
secured debt of the Corporation secured by such Liens would not exceed 10% of
the excess of the Corporation's consolidated assets over the consolidated
liabilities as shown on the Corporation's most recent audited consolidated
financial statements in accordance with generally accepted accounting
principles.
(b) For the purposes of this Section 6.04, any
contract by which title is retained as security (whether by lease, purchase,
title retention agreement or otherwise) for the payment of a purchase price
shall be deemed to be a purchase money Lien. Nothing in this Section 6.04 shall
apply to any Lien of any kind upon any of the properties of any character of the
Corporation existing on the date of execution and delivery of this Indenture.
(c) Nothing contained in this Section 6.04 or
elsewhere in this Indenture shall prevent or be deemed to prohibit the creation,
assumption or guaranty by the Corporation of any indebtedness not secured by a
Lien or the issuance by the Corporation of any debentures, notes or other
evidences of indebtedness not secured by a Lien, whether in the ordinary course
of business or otherwise.
Section 6.05. On or before April 30 in each year (commencing
with the first April 30 which is not less than 60 days following the first date
of issuance of Debt Securities of any series under this Indenture), the
Corporation will file with the Trustee a brief certificate (which need not
comply with Section 15.04), signed by the principal executive officer, the
principal financial officer, or the principal accounting officer of the
Corporation, stating whether or not the signer has knowledge of any default by
the Corporation in the performance or fulfillment of any covenant, agreement, or
condition contained in this Indenture, and, if so, specifying each such default
of which the signer has knowledge, the nature thereof, and what action, if any,
has been taken and is proposed to be taken to cure such default. For purposes of
this paragraph, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture. Within five
days after the occurrence thereof, the Corporation will notify the Trustee in
writing of any failure by the Corporation to pay any installment of interest or
any principal (or premium, if any) which with the giving of notice by the
Trustee would be an "event of default" within the meaning of Section 7.01 (h)
hereof.
Section 6.06. Anything in this Indenture to the contrary
notwithstanding, the Corporation may fail or omit in any particular instance to
comply with a covenant or condition set forth in Section 6.04 with respect to
the Debt Securities of any series if the Corporation shall have obtained and
filed with the Trustee, before or after the time for such compliance, evidence
(as provided in Article Eight) of the consent of the holders of at least a
majority in aggregate principal amount of such series of Debt Securities at the
time outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not so waived or impair any right consequent
thereon.
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ARTICLE SEVEN
REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS
Section 7.01. Except where otherwise indicated by the context
or where the term is otherwise defined for a specific purpose, the term "event
of default" wherever used in this Indenture shall mean, with respect to a
particular series of Debt Securities, one of the following described events:
(a) the failure of the Corporation to pay any
installment of interest on any Debt Security of such series, when and as the
same shall become due and payable, which failure shall have continued unremedied
for a period of 30 days;
(b) the failure of the Corporation to pay the
principal of (or premium, if any, on) any Debt Security of such series, when and
as the same shall become payable, whether at maturity as therein expressed, by
call for redemption, by declaration of acceleration of maturity thereof as
authorized by this Indenture or otherwise;
(c) the failure of the Corporation to make or satisfy
any sinking fund payment or analogous obligation for such series, when and as
the same shall become due and payable;
(d) the failure of the Corporation, subject to the
provisions of Section 6.06, to observe and perform any other of the covenants or
agreements on the part of the Corporation with respect to such series contained
in this Indenture (including any indenture supplemental hereto or any Board
Resolution establishing the terms and provisions of such series), which failure
shall have continued unremedied to the satisfaction of the Trustee, or without
provision deemed by the Trustee to be adequate for the remedying thereof having
been made, for a period of 30 days after written notice shall have been given to
the Corporation by the Trustee by registered or certified mail, or shall have
been given to the Corporation and the Trustee by the holders of 25% or more in
principal amount of the Debt Securities of such series then outstanding,
specifying such failure and requiring the Corporation to remedy the same;
(e) the entry by a court of competent jurisdiction of
a decree or order, unstayed on appeal or otherwise and in effect for 30 days,
adjudicating the Corporation bankrupt or insolvent;
(f) the entry by a court of competent jurisdiction of
a decree or order appointing a receiver or liquidator or trustee of the
Corporation or of substantially all the property of the Corporation, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Corporation under Title 11 of
the United States Code, as now constituted or as hereafter in effect, or any
other Federal or state bankruptcy or other similar statute applicable to the
Corporation; but only if and when such decree or order shall have continued
unstayed on appeal or otherwise and in effect for 60 days;
(g) the filing by the Corporation of a petition in
voluntary bankruptcy under any of the provisions of any bankruptcy law; or the
consenting by the Corporation to the filing of any bankruptcy or reorganization
petition against it under any such law; or (without
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limitation of the generality of the foregoing) the filing by the Corporation of
a petition seeking relief under Title 11 of the United States Code, as now
constituted or as hereafter in effect, or any other Federal or state bankruptcy
or other similar statute applicable to the Corporation, as now or hereafter in
effect; or the making by the Corporation of an assignment for the benefit of
creditors; or the admitting in writing by the Corporation of its inability to
pay its debts generally as they become due; or the consenting by the Corporation
to the appointment of a receiver or liquidator or custodian or trustee of it or
of substantially all its property; or
(h) any event of default, as defined in any mortgage,
indenture (including this Indenture), trust agreement or other instrument
securing, evidencing or providing for any evidence of indebtedness of, or
assumed or guaranteed by, the Corporation (other than indebtedness which is
subordinated to the Debt Securities), as a result of which such indebtedness in
excess of $25,000,000 in aggregate principal amount or such other amount set
forth in any indenture supplemental hereto or any Board Resolution establishing
the terms and provisions of any series of Debt Securities shall be or become due
and payable prior to the date on which the same would otherwise become due and
payable and such acceleration shall not have been annulled or rescinded within
30 days of notice of such acceleration given to the Corporation by the Trustee,
or to the Corporation and the Trustee by the holders of 25% or more in principal
amount of the outstanding Debt Securities of such series; provided, however,
that, if such event of default with respect to such other series of Debt
Securities or under such indenture or instrument (as the case may be) shall be
remedied or cured by the Corporation or waived by the holders of such other
series of Debt Securities or the holders of such indebtedness, as the case may
be, pursuant to this Indenture or such indenture or instrument, as the case may
be, then unless the maturity of the Debt Securities of such series shall have
been accelerated as provided herein, the event of default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or the holders
of such series; provided, further, that, subject to the provisions of Sections
11.02 and 11.03, the Trustee shall not be charged with knowledge of any such
default unless written notice thereof shall have been given to the Trustee by
the Corporation, by the holder or an agent of the holder of any such
indebtedness, by the trustee then acting under any indenture or other instrument
under which such default shall have occurred, or by the holders of not less than
10% in aggregate principal amount of the outstanding Debt Securities of such
series.
(i) Any other event of default with respect to any
series of Debt Securities designated in an indenture supplemental hereto or any
Board Resolution establishing the terms and provisions of any series of Debt
Securities.
Upon receipt by a Responsible Officer of the Trustee of any
notice of default pursuant to Section 7.01(d) with respect to Debt Securities of
a series all or part of which is represented by a Global Security, the Trustee
may establish a record date in accordance with Section 8.04 of this Indenture
for determining holders of Outstanding Debt Securities of such series entitled
to join in such notice of default, or, if not established by the Trustee, the
record date shall be established in accordance with the second sentence of
Section 8.04 of this Indenture. If a record date is so established, the holders
of Debt Securities of such series on such record date, or their duly designated
proxies, and only such persons, shall be entitled to join in such notice of
default, whether or not such holders remain holders after such record date;
provided, that unless holders of at least 10% in principal amount of the
Outstanding Debt
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Securities of such series, or their proxies, shall have joined in such notice of
default prior to the day which is 60 days after such record date, such notice of
default shall automatically and without further action by any holder be
cancelled and of no further effect.
Section 7.02. If any one or more of the above-described events
of default shall happen with respect to Debt Securities of any series, then, and
in each and every such case, during the continuance of any such event of
default, the Trustee or the holders of 25% or more in principal amount of the
Debt Securities of such series then outstanding may, and upon the written
request of the holders of a majority in principal amount of the Debt Securities
of such series then outstanding the Trustee shall, declare the principal of all
the Debt Securities of such series (or, with respect to Original Issue Discount
Securities, such lesser amount as may be specified in the terms of such Debt
Securities) then outstanding (if not then due and payable) to be due and
payable, and upon any such declaration of acceleration of the maturity thereof
the same shall become and be immediately due and payable, anything in this
Indenture or in the Debt Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the principal of the Debt Securities of a series (or, with
respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Debt Securities) shall have been so declared to
be due and payable, all arrears of interest, if any, upon all the Debt
Securities of such series (with interest, to the extent that interest thereon
shall, in the opinion of counsel satisfactory to the Trustee, be legally
enforceable, on any overdue installments of interest at the rate borne by the
Debt Securities of such series) and the reasonable charges, fees and expenses of
the Trustee, its agents and attorneys, and all other sums payable under this
Indenture with respect to such series (except the principal of the Debt
Securities of such series which would not be due and payable were it not for
such declaration), shall be paid by the Corporation, and every other default and
event of default under this Indenture with respect to the Debt Securities of
such series shall have been made good to the reasonable satisfaction of the
Trustee or of the holders of a majority in principal amount of the Debt
Securities of such series then outstanding, or provision deemed by the Trustee
or by such holders to be adequate therefor shall have been made, then and in
every such case the holders of a majority in principal amount of the Debt
Securities of such series then outstanding may, on behalf of the holders of all
the Debt Securities of such series, waive the event of default by reason of
which the principal of the Debt Securities of such series shall have been so
declared to be due and payable and may rescind and annul such declaration and
its consequences; but no such waiver, rescission, or annulment shall extend to
or affect any subsequent default or event of default or impair any right
consequent thereon. Any declaration by the Trustee pursuant to this Section 7.02
shall be by written notice to the Corporation, and any declaration or waiver by
the holders of Debt Securities of a series pursuant to this Section 7.02 shall
be by written notice to the Corporation and the Trustee.
Upon receipt by the Trustee of any written declaration of
acceleration, or waiver, rescission, and annulment thereof, with respect to Debt
Securities of a series all or part of which is represented by a Global Security,
the Trustee may establish a record date for determining holders of Outstanding
Debt Securities of such series entitled to join in such declaration of
acceleration, or waiver, rescission, and annulment, as the case may be, in
accordance with Section 8.04 of this Indenture, or, if not established by the
Trustee, the record date shall be established in accordance with the second
sentence of Section 8.04 of this Indenture. If a record date is so established,
the holders on such record date, or their duly designated proxies, and only
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such persons, shall be entitled to join in such declaration of acceleration, or
waiver, rescission, and annulment, as the case may be, whether or not such
holders remain holders after such record date; provided, that unless such
declaration of acceleration, or waiver, rescission, and annulment, as the case
may be, shall have become effective by virtue of the requisite percentage having
been obtained prior to the day which is 60 days after such record date, such
declaration of acceleration, or waiver, rescission, and annulment, as the case
may be, shall automatically and without further action by any holder be
cancelled and of no further effect.
Section 7.03. If the Corporation shall fail for a period of 30
days to pay any installment of interest on any Debt Security of any series or
shall fail to pay the principal of (or premium, if any, on) any of the Debt
Securities of any series when and as the same shall become due and payable,
whether at maturity, by call for redemption, pursuant to any sinking fund or
analogous obligation, by declaration of acceleration of the maturity thereof as
authorized by this Indenture, or otherwise, then, upon demand of the Trustee,
the Corporation will pay to the Trustee for the benefit of the holders of the
Debt Securities of such series then outstanding the whole amount which then
shall have become due and payable on all Debt Securities of such series, with
interest on the overdue principal (and premium, if any) and (so far as the same
may be legally enforceable) on the overdue installments of interest at the rate
borne by the Debt Securities of such series (or, with respect to Original Issue
Discount Securities, at the rate specified in the terms of such Debt Securities
for interest on overdue principal thereof upon maturity, redemption, or
acceleration) and reasonable compensation to the Trustee, its agents and
attorneys, and any other reasonable expenses and liabilities incurred by the
Trustee under this Indenture without negligence or bad faith.
In case the Corporation shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust or otherwise as it shall deem advisable, shall be entitled and
empowered to institute any action or proceeding at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Corporation or any other obligor upon such Debt
Securities, and collect the moneys adjudged or decreed to be payable out of the
property of the Corporation or any other obligor upon such Debt Securities,
wherever situated, in the manner provided by law. Every recovery of judgment in
any such action or other proceeding, subject to the payment of the expenses,
disbursements, and compensation of the Trustee, its agents and attorneys, shall
be for the ratable benefit of the holders of such Debt Securities which shall be
the subject of such action or proceeding. All rights of action upon or under any
of the Debt Securities or this Indenture may be enforced by the Trustee without
the possession of any of the Debt Securities and without the production of any
thereof at any trial or any proceeding relative thereto.
Section 7.04. The Trustee for each series of Debt Securities
is hereby appointed, and each and every holder of Debt Securities of such
series, by receiving and holding the same, shall be conclusively deemed to have
appointed such Trustee, the true and lawful attorney-in-fact of such holder,
with authority to make or file (whether or not the Corporation shall be in
default in respect of the payment of the principal of (or premium, if any) or
interest, if any, on any of the Debt Securities of such series), in its own name
as trustee of an express trust or otherwise as it shall deem advisable, in any
receivership, insolvency, liquidation, bankruptcy, reorganization, or other
judicial proceedings relative to the Corporation or any other obligor upon such
Debt
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Securities or to their respective creditors or property, any and all claims,
proofs of claim, proofs of debt, petitions, consents, other papers and
documents, and amendments of any thereof, as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of such Debt
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceedings any of the claims of such Trustee and of any of such
holders in respect of any of the Debt Securities of such series; and any
receiver, assignee, custodian, trustee, or debtor in any such proceedings is
hereby authorized, and each and every holder of the Debt Securities of such
series, by receiving and holding the same, shall be conclusively deemed to have
authorized any such receiver, assignee, custodian, trustee, or debtor, to make
any such payment or delivery to or on the order of such Trustee, and, in the
event that such Trustee shall consent to the making of such payments or
deliveries directly to the holders of the Debt Securities of such series, to pay
to such Trustee any amount due it for compensation and expenses, including
counsel fees and expenses, incurred by it down to the date of such payment or
delivery; provided, however, that nothing herein contained shall be deemed to
authorize or empower such Trustee to consent to or accept or adopt, on behalf of
any holder of Debt Securities of such series, any plan of reorganization or
readjustment of the Corporation affecting the Debt Securities of such series or
the rights of any holder thereof, or to authorize or empower such Trustee to
vote in respect of the claim of any holder of any Debt Securities of such series
in any such proceedings.
Section 7.05. Any moneys collected by the Trustee under this
Article Seven shall be applied by the Trustee as follows:
First: To the payment of all amounts due the Trustee under
this Indenture and, in particular, Section 11.01 (a) hereof.
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities in respect of which such moneys shall have been collected,
ratably and without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities at the date fixed by the Trustee for the
distribution of such moneys, upon presentation of such Debt Securities and
notation thereon of the payment, if only partially paid, and upon the surrender
and cancellation thereof, if fully paid.
Any surplus then remaining shall be paid to the Corporation or
to such other persons as shall be entitled to receive it.
Section 7.06. Upon any sale made under any writ of execution
issued on any judgment for the recovery of the indebtedness evidenced by the
Debt Securities of any series or recovered under this Indenture, any purchaser
shall be entitled, if and to the extent permitted by law, in making settlement
or payment of the purchase price of the property purchased, to present and to
turn in and use any of the Debt Securities of such series then matured and
unpaid, such Debt Securities being computed for that purpose at a sum equal to
that which shall be payable out of the net proceeds of such sale to such
purchaser as the holder thereof for his share of such net proceeds; and, if the
amounts so payable in respect of such Debt Securities shall be less than the
amount for which the Corporation may be liable thereon, then the receipt
endorsed thereon
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under the direction of any person authorized to receive payment of the purchase
price for the amount to be so allowed or credited thereon shall constitute
partial payment and settlement and shall be conclusive proof of the amount
thereof. At any such sale, any holder or holders of the Debt Securities of such
series may directly, or through one or more agents, bid for and purchase the
property sold for his or their own account and make payment therefor as
aforesaid or otherwise and may hold, retain, and dispose of such property
without further accountability.
Section 7.07. If any one or more of the events of default
described in Section 7.01 shall occur and be continuing with respect to any
series of Debt Securities, the Trustee shall be entitled, if it shall so elect,
as a matter of right, whether or not the principal of (or premium, if any, on)
the Debt Securities of such series or any thereof shall have been declared or
shall have become due and payable, to the appointment of a receiver of any of or
all the property, interests, rights, and business of the Corporation and of the
earnings, rents, issues, and profits thereof, with such powers as the court
making such appointment shall confer; provided, however, that nothing in this
Section 7.07 contained shall entitle the Trustee to the appointment of a
receiver of any property which shall at the time be subject to the lien of any
mortgage if, pursuant to the provisions of such mortgage, such property shall
then be in the possession of the trustee under such mortgage or a receiver of
such property shall have been appointed by a court of competent jurisdiction and
the appointment of such receiver shall then be in effect.
Section 7.08. The holders of a majority in principal amount of
the outstanding Debt Securities of any series affected thereby (each series
voting as one class) at the time outstanding may direct the time, method, and
place of conducting any proceeding for any remedy available with respect to such
series to the Trustee hereunder, or of exercising any trust or power hereby
conferred upon the Trustee; but, subject to the provisions of Section 11.02, the
Trustee shall have the right to decline to follow any such direction if a
responsible officer or officers of the Trustee shall determine that the action
so directed would be unjustly prejudicial to the holders of Debt Securities of
such series not joining therein, may not be lawfully taken or would involve the
Trustee in personal liability.
Upon receipt by the Trustee of any such direction with respect
to Debt Securities of a series all or part of which is represented by a Global
Security, the Trustee may establish a record date in accordance with Section
8.04 of this Indenture for determining holders of Outstanding Debt Securities of
such series entitled to join in such direction, or, if not established by the
Trustee, the record date shall be established in accordance with the second
sentence of Section 8.04 of this Indenture. If a record date is so established,
the holders on such record date, or their duly designated proxies, and only such
persons, shall be entitled to join in such direction, whether or not such
holders remain holders after such record date; provided, that unless such
majority in principal amount shall have been obtained prior to the day which is
60 days after such record date, such direction shall automatically and without
further action by any holder be cancelled and of no further effect.
Section 7.09. No holder of any Debt Security of any series
shall have any right to institute any action, suit, or proceeding at law or in
equity for the execution of any trust hereunder or for the appointment of a
receiver or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee for such series written notice of the happening of one
or more of the events of default herein specified, and unless also the holders
of a majority
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in principal amount of the Debt Securities of such series then outstanding shall
have requested the Trustee in writing to take action in respect of the matter
complained of, and unless also there shall have been offered to the Trustee
security and indemnity satisfactory to it against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after receipt of such notification, request, and offer of security and
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding; and such notification, request, and offer of security and
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit, or proceeding by any holder of any Debt Securities of any
series; it being understood and intended that no one or more of the holders of
Debt Securities of any series shall have any right in any manner whatsoever by
his or their action to enforce any right hereunder, except in the manner herein
provided, and that every action, suit, or proceeding at law or in equity shall
be instituted, had, and maintained in the manner herein provided and for the
equal benefit of all holders of the outstanding Debt Securities of such series;
provided, however, that nothing in this Indenture or in the Debt Securities
contained shall affect or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on the Debt Securities to the respective holders of the Debt
Securities at the respective due dates in such Debt Securities stated, or shall
affect or impair the right, which is also absolute and unconditional, of such
holders (without their consent) to institute suit to enforce the payment
thereof.
Section 7.10. All parties to this Indenture and the holders of
the Debt Securities agree that the court may in its discretion require, in any
action, suit, or proceeding for the enforcement of any right or remedy under
this Indenture, or in any action, suit, or proceeding against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such action, suit, or proceeding of an undertaking to pay the costs of such
action, suit, or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such action, suit, or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.10 shall not apply to any action,
suit, or proceeding instituted by the Trustee, to any action, suit, or
proceeding instituted by any one or more holders of Debt Securities of a series
holding in the aggregate more than 10% in principal amount of the Debt
Securities of such series then outstanding, or to any action, suit, or
proceeding instituted by any holder of Debt Securities for the enforcement of
the payment of the principal of (or premium, if any) or interest, if any, on any
of the Debt Securities of such series, on or after the respective due dates
expressed in such Debt Securities.
Section 7.11. No remedy herein conferred upon or reserved to
the Trustee or to the holders of Debt Securities of any series is intended to be
exclusive of any other remedy or remedies, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No delay or omission of
the Trustee or of any holder of the Debt Securities to exercise any right or
power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of any such default or an acquiescence therein; and
every power and remedy given by this Article Seven to the Trustee and to the
holders of Debt Securities of any series, respectively, may be exercised from
time to time and as often as may be deemed expedient by the Trustee or by the
holders of Debt Securities of such series, as the case may be. In case the
Trustee or any holder of Debt Securities of such series shall have proceeded to
enforce any right under this Indenture and
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the proceedings for the enforcement thereof shall have been discontinued or
abandoned because of waiver or for any other reason or shall have been
adjudicated adversely to the Trustee or to such holder of Debt Securities, then
and in every such case the Corporation, the Trustee and the holders of the Debt
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder and thereafter all rights, remedies, and
powers of the Trustee shall continue as though no such proceedings had been
taken, except as to any matters so waived or adjudicated. The provisions of this
Section 7.11 are subject to the provisions of Section 7.09.
Section 7.12. The holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series may on behalf
of the holders of all the outstanding Debt Securities of such series waive any
past default hereunder with respect to the Debt Securities of such series and
its consequences, except a default
(a) in the payment of the principal of (or premium,
if any) or interest on any Debt Securities of such series, or
(b) in respect of a covenant or provision of this
Indenture which under Article Fourteen cannot be modified or amended without the
consent of the holder of each outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any event of default described in Section 7.01 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 7.13. If, for the purpose of obtaining a judgment in
any court with respect to any obligation of the Corporation hereunder or under
any Debt Security or any related coupon, it shall become necessary to convert
into any other currency or currency unit any amount in the currency or currency
unit due hereunder or under such Debt Security or coupon, then such conversion
shall be made by the Currency Determination Agent at the Market Exchange Rate as
in effect on the date of entry of the judgment (the "Judgment Date"). If
pursuant to any such judgment, conversion shall be made on a date (the
"Substitute Date") other than the Judgment Date and there shall occur a change
between the Market Exchange Rate as in effect on the Judgment Date and the
Market Exchange Rate as in effect on the Substitute Date, the Corporation agrees
to pay such additional amounts, if any, as may be necessary to ensure that the
amount paid is equal to the amount in such other currency or currency unit
which, when converted at the Market Exchange Rate as in effect on the Judgment
Date, is the amount due hereunder or under such Debt Security or coupon. Any
amount due from the Corporation under this Section 7.13 shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Debt Security or
coupon. In no event, however, shall the Corporation be required to pay more in
the currency or currency unit due hereunder or under such Debt Security or
coupon at the Market Exchange Rate as in effect on the Judgment Date than the
amount of currency or currency unit stated to be due hereunder or under such
Debt Security or coupon so that in any event the Corporation's obligations
hereunder or under such Debt Security or coupon will be effectively maintained
as obligations in such currency or currency unit, and the Corporation shall be
entitled to withhold
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(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion on the Substitute Date over the amount due and
payable on the Judgment Date.
ARTICLE EIGHT
CONCERNING THE DEBT SECURITYHOLDERS
Section 8.01. Whenever in this Indenture it is provided that
the holders of a specified percentage or a majority in aggregate principal
amount of Debt Securities of any or all series may take any action (including
the making of any demand or request, the giving of any notice, consent, or
waiver, or the taking of any other action), the fact that at the time of taking
any such action the holders of such specified percentage or majority have joined
therein may be evidenced (1) by any instrument or any number of instruments of
similar tenor executed by Debt Securityholders in person or by an agent or proxy
appointed in writing, or (2) by the record of the holders of Debt Securities
voting in favor thereof at any meeting of Debt Securityholders duly called and
held in accordance with the provisions of Article Nine, or (3) by a combination
of such instrument or instruments and any such record of such a meeting of Debt
Securityholders.
Section 8.02. Subject to the provisions of Section 11.02,
proof of the execution of any instrument by a Debt Securityholder or his agent
or proxy and proof of the holding by any person of any of the Debt Securities
shall be sufficient if made in the following manner:
The fact and date of the execution by any person of any such
instrument may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Debt Securities may be proved by the register
of such Debt Securities or by a certificate of the registrar thereof.
The record of any Debt Securityholders' meeting shall be
proved in the manner provided in Section 9.06.
Section 8.03. In determining whether the holders of the
requisite principal amount of the Debt Securities of any or all series have
given any direction, request, waiver, or consent under this Indenture, Debt
Securities which are owned by the Corporation or by any other obligor on the
Debt Securities or by any person directly or indirectly controlling, or
controlled by, or under direct or indirect common control with, the Corporation
or any such other obligor shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, request, or consent, only Debt Securities which the Trustee knows are
so owned shall be disregarded. Debt Securities so owned which have been pledged
in good faith may be regarded as outstanding for purposes of this Section 8.03,
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Debt Securities and that the pledgee is not a person directly
or indirectly controlling, or controlled by, or under direct or indirect common
control with, the Corporation or any such other obligor. In case of a dispute as
to such right, any decision by the Trustee taken upon and in accordance with the
advice of counsel shall be full protection to the Trustee.
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Section 8.04. The Corporation may set a record date in the
circumstances permitted by the Trust Indenture Act for the purpose of
determining the holders of Debt Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver, or
other action, or to vote on any action authorized or permitted to be given or
taken by holders of Debt Securities of such series. If not set by the
Corporation prior to the first solicitation of a holder of Debt Securities of
such series in respect of any such action, or, in the case of any such vote,
prior to such vote, or if not set by the Trustee in accordance with (1) Section
7.01, upon receipt by the Trustee of any notice of default pursuant to Section
7.01(d), (2) Section 7.02, upon receipt by the Trustee of any written
declaration of acceleration of maturity, or waiver, rescission, and annulment
thereof, or (3) Section 7.08, upon receipt by the Trustee of any direction of
the time, method and place for conducting any proceeding for any remedy
available, each such notice, declaration, or direction given with respect to
Debt Securities of a series all or part of which is represented by a Global
Security, the record date for any such action, vote, notice, declaration, or
direction shall be the 30th day (or, if later, the date of the most recent list
of holders required to be provided pursuant to Section 10.03) prior to such
first solicitation, vote, notice, declaration, or direction, as the case may be.
With regard to any record date for action to be taken by the holders of one or
more series of Debt Securities, only the holders of Debt Securities of such
series on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
ARTICLE NINE
DEBT SECURITYHOLDERS' MEETINGS
Section 9.01. A meeting of Debt Securityholders of any or all
series may be called at any time and from time to time pursuant to the
provisions of this Article Nine for any of the following purposes:
(1) to give any notice to the Corporation or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Debt Securityholders pursuant to any
of the provisions of Article Seven;
(2) to remove the Trustee for any series and appoint a
successor Trustee for such series pursuant to the provisions of
Article Eleven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 14.02; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the Debt Securities of any or all series under any other provision of
this Indenture or under applicable law.
Section 9.02. The Trustee may at any time call a meeting of
Debt Securityholders of any or all series to take any action specified in
Section 9.01, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of the Debt Securityholders of any or all
series setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be mailed by the
Corporation, first class
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postage prepaid, not later than the twentieth day prior to the date fixed for
such meeting, to all Debt Securityholders of the applicable series at their
addresses as the same shall then appear in the register of the Corporation.
Section 9.03. In case at any time the Corporation, pursuant to
a Board Resolution, or the holders of at least 10% in aggregate principal amount
of the Debt Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of Debt
Securityholders of any or all series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Corporation or the holders of such Debt
Securities in the amount above specified may determine the time and place for
such meeting and may call such meeting to take any action authorized in Section
9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. To be entitled to vote at any meeting of Debt
Securityholders a person shall be (a) a holder of one or more Debt Securities of
a series with respect to which a meeting is being held, or (b) a person
appointed as a proxy by an instrument executed by such holder. The only persons
who shall be entitled to be present or to speak at any meeting of Debt
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Corporation and its counsel.
Section 9.05. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Debt Securityholders, in regard to proof of the
holding of Debt Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates, and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit. Except as otherwise permitted or required by any such regulations, the
holding of Debt Securities shall be proved in the manner specified in Section
8.02 and the appointment of any proxy shall be proved in the manner specified in
Section 8.02 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank, banker, or stock exchange
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Corporation or by Debt Securityholders as provided in Section 9.03, in which
case the Corporation or the Debt Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Debt Securities represented
at the meeting and entitled to vote.
Subject to the provisions of Section 8.03, at any meeting each
Debt Securityholder or proxy shall be entitled to one vote for each $1,000
principal amount or such other amount established pursuant to Section 2.01 (in
the case of Original Issue Discount Securities or Debt Securities denominated in
a foreign currency or currencies, such principal amount to be determined as
provided in the definition of "Outstanding" in Section 1.02) of Debt
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Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any such Debt Security challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
as stated in Section 9.04. Any meeting of Debt Securityholders duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time, and the meeting may be held as so adjourned without further notice.
At any meeting of Debt Securityholders, the presence of
persons holding or representing Debt Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than
a quorum be present, the persons holding or representing a majority of the Debt
Securities properly represented at the meeting may adjourn such meeting with the
same effect, for all intents and purposes, as though a quorum had been present.
Section 9.06. The vote upon any resolution submitted to any
meeting of Debt Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Debt Securities or of their
representatives by proxy and the principal amount (in the case of Original Issue
Discount Securities or Debt Securities denominated in a foreign currency or
currencies, such principal amount to be determined as provided in the definition
of "Outstanding" in Section 1.02) of the Debt Securities of the appropriate
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Debt
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the Trustee. With
the latter there shall also be delivered to the Trustee the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 9.07. Nothing contained in this Article Nine shall be
deemed or construed to authorize or permit, by reason of any call of a meeting
of Debt Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Debt Securityholders of any or all series under any of the provisions of
this Indenture or of such series of Debt Securities.
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ARTICLE TEN
REPORTS BY THE CORPORATION AND THE TRUSTEE AND DEBT SECURITYHOLDERS' LISTS
Section 10.01. The Trustee shall transmit to the holders of
Debt Securities for which it serves as Trustee within 60 days after April 15 of
each year commencing with the year in which Debt Securities of any series are
issued under this Indenture, a brief report dated as of such April 15 that
complies with Section 313(a) of the Trust Indenture Act of 1939 if required by
such Section 313(a). The Trustee also shall comply with Sections 313(b)(2),
313(c) and 313(d) of the Trust Indenture Act of 1939.
The Corporation will reimburse the Trustee for all expenses
incurred in the preparation and transmission of any report pursuant to the
provisions of this Section 10.01 and of Section 10.02.
Section 10.02. (a) The Corporation will file with the Trustee,
within 15 days after the Corporation shall be required so to file the same with
the Securities and Exchange Commission, copies of the annual reports and of the
information, documents, and other reports which the Corporation may be required
to file with the Securities and Exchange Commission pursuant to the provisions
of Section 13 or Section 15 (d) of the Securities Exchange Act of 1934 (or
copies of such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe); or, if the Corporation is
not required to file information, documents, or reports pursuant to the
provisions of either of such Sections, then the Corporation will file with the
Trustee and the Securities and Exchange Commission, in accordance with rules and
regulations prescribed by the Securities and Exchange Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to the provisions of 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 in such rules and regulations.
(b) The Corporation will file with the Trustee and the
Securities and Exchange Commission, in accordance with rules and regulations
prescribed by the Securities and Exchange Commission, such additional
information, documents, and reports with respect to compliance by the
Corporation with the conditions and covenants provided for in this Indenture as
may be required by such rules and regulations.
(c) The Corporation will transmit to the holders of Debt
Securities, within 30 days after the filing thereof with the Trustee (unless
some other time shall be fixed by the Securities and Exchange Commission) and in
the manner and to the extent provided in subdivision (c) of Section 10.01, such
summaries of any information, documents, and reports required to be filed by the
Corporation pursuant to the provisions of subdivisions (a) and (b) of this
Section 10.02 as may be required by rules and regulations prescribed by the
Securities and Exchange Commission.
Section 10.03. (a) The Corporation will furnish or cause to be
furnished to the Trustee semiannually, not more than 15 days after each Record
Date for a series of Debt
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Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of the Debt Securities of such series as of
such Record Date, and at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Corporation of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished, but so long as the Trustee is the Debt Security
registrar, no such lists shall be required to be furnished.
(b) The Trustee will preserve, in as current form as
is reasonably practicable, all information as to the names and addresses of
holders of Debt Securities so furnished to it or received by it in the capacity
of paying agent or Debt Security registrar, if acting as such. The Trustee may
(1) destroy any information furnished to it as provided in subdivision (a) of
this Section 10.03 upon receipt of new similar information so furnished to it;
and (2) destroy any information received by it as paying agent or Debt Security
registrar in connection with an interest payment, upon receipt of new similar
information but not until 45 days after a subsequent interest payment shall have
been made.
(c) Within five business days after receipt by the
Trustee of a written application by any three or more holders of Debt Securities
of any series stating that such holders (hereinafter in this subdivision (c)
called such applicants) desire to communicate with other holders of Debt
Securities of such series with respect to their rights under this Indenture or
under the series of Debt Securities, and accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Debt Security of such
series for a period of at least six months preceding the date of such
application, the Trustee will, at its election, either:
(1) afford to such applicants access to all information
furnished to, or received by, and preserved by, the Trustee
pursuant to the provisions of this Section 10.03; or
(2) inform such applicants as to the approximate number
of holders of Debt Securities of such series according to
the most recent information so furnished to, or received by,
and preserved by, the Trustee, and as to the approximate
cost of mailing to such holders of Debt Securities the form
of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all holders of Debt Securities of the series whose names and addresses
are contained in the information so furnished to, or received by, and preserved
by, the Trustee copies 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 such mailing, unless, within five
business days after such tender, the Trustee shall mail to such applicants, and
file with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the holders
of the Debt Securities of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Securities and Exchange Commission, after opportunity for a hearing upon the
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objections specified in the written statement so filed, shall enter an order
refusing to sustain any of the objections specified in the written statement so
filed, or if, after the entry of an order sustaining one or more of such
objections, the Securities and Exchange Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such holders of Debt Securities 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.
Each and every holder of the Debt Securities, by receiving and
holding the same, agrees with the Corporation, any agent and the Trustee that
neither the Corporation, any agent nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Debt Securities in accordance with the provisions of this
subdivision (c), 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 this subdivision (c).
ARTICLE ELEVEN
CONCERNING THE TRUSTEE
Section 11.01. The Trustee accepts the trusts created by this
Indenture upon the terms and conditions hereof, including the following, to all
of which the parties hereto and the holders from time to time of Debt Securities
of each series, by receiving and holding the same, agree:
(a) The Trustee shall be entitled to 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), and such compensation, as well as the reasonable
compensation of its counsel, and all other reasonable expenses incurred by the
Trustee hereunder, the Corporation agrees to pay promptly on demand from time to
time as such services shall be rendered and as such expenses shall be incurred.
In default of such payment by the Corporation, the Trustee shall have a lien
therefor on any moneys held by the Trustee hereunder prior to any rights therein
of the holders of the Debt Securities of any series for which it serves as
Trustee. The Corporation also agrees to indemnify the Trustee for, and to hold
it harmless against, any loss, liability, or expense incurred without negligence
or bad faith on the part of the Trustee, arising out of or in connection with
the acceptance or administration of this trust or the performance of its duties
hereunder, as well as the costs and expenses of defending against any claim of
liability in the premises.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any duty hereunder either directly or by its agents
and 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.
(c) The Trustee shall not be responsible in any
manner whatsoever for the correctness of the recitals herein or in the Debt
Securities (except its certificate of
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authentication thereon, if such shall have been executed by the Trustee), all of
which are made by the Corporation solely; and the Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to the
validity or execution or sufficiency of this Indenture or of the Debt Securities
(except its certificate of authentication thereon, if such shall have been
executed by the Trustee), and the Trustee makes no representation with respect
thereto. The Trustee shall not be accountable for the use or application by the
Corporation of any series of Debt Securities, or the proceeds of any series of
Debt Securities authenticated and delivered by the Trustee in conformity with
the provisions of this Indenture.
(d) The Trustee may consult with counsel, and, to the
extent permitted by Section 11.02, the opinion or written advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted to be taken by the Trustee hereunder in good faith
and in accordance with the opinion or advice of such counsel.
(e) The Trustee, to the extent permitted by Section
11.02, may rely upon the certificate of the Secretary or one of the Assistant
Secretaries of the Corporation as to the adoption of any Board Resolution.
(f) The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and may otherwise
deal with the Corporation with the same rights it would have had if it were not
Trustee hereunder.
(g) Any action taken by the Trustee pursuant to any
provision hereof at the request or with the consent of any person who at the
time is the holder of a Debt Security of any series shall be conclusive and
binding in respect of such Debt Security upon all future holders thereof or of
any Debt Security or Debt Securities which may be issued for or in lieu thereof
in whole or in part, whether or not such Debt Security shall have noted thereon
the fact that such request or consent had been made or given.
(h) Subject to the provisions of Section 11.02, the
Trustee may rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, notice, opinion, order, request, direction,
Debt Security, or other paper or document believed by it to be genuine and to
have been signed or presented to it by the proper party or parties.
(i) Subject to the provisions of Section 11.02, the
Trustee shall not be under any obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order, or direction of any
of the holders of any series of Debt Securities, pursuant to any provisions of
this Indenture, unless one or more of the holders of such Debt Securities shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses, and liabilities which may be incurred by it therein or thereby.
Section 11.02. If some one or more of the events of default
specified in Section 7.01 shall have happened, then, during the continuance
thereof, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and shall use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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None of the provisions of this Indenture shall be construed as
relieving the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that, anything
in this Indenture contained to the contrary notwithstanding:
(1) unless and until an event of default specified in
Section 7.01 shall have happened which at the time is subsisting,
(a) the Trustee shall not be liable except for the
performance of such duties as are specifically set out in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee, whose duties and obligations shall
be determined solely by the express provisions of this Indenture, and
(b) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, in the absence of bad faith on the part of the Trustee, upon
certificates and opinions furnished to it and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which, by the provisions of this Indenture,
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable to any holder of Debt
Securities or to any other person for any error of judgment made in good faith
by a responsible officer or officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable to any holder of Debt
Securities or to any other person 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 Debt Securities of any series at the time
outstanding (determined in accordance with the provisions of Article Eight
hereof), relating to the time, method, and place of conducting any proceeding
for any remedy available to it or exercising any trust or power conferred upon
it by this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 11.03. The Trustee shall give to the holders of the
Debt Securities of each series for which it serves as Trustee, in the manner and
to the extent provided in subdivision (c) of Section 10.01, notice of each
default with respect to such series known to the Trustee within 90 days after
the occurrence thereof, unless such default shall have been cured before the
giving of such notice; but, unless such default be the failure to pay the
principal of (or premium, if any) or interest, if any, on any of the Debt
Securities of such series when and as the same shall become payable, the Trustee
shall be protected in withholding such notice, if and so long as the
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board of directors, the executive committee, or a trust committee of directors
and/or responsible officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of the Debt
Securities of such series. The term "default", as used in this Section 11.03 and
in Section 11.06, shall mean the happening of any event defined in Section 7.01
as an "event of default", except that, for the purposes of this Section 11.03
and Section 11.06 only, there shall be eliminated from the definition of any
such event specified in paragraph (a), (c), (d), (e), or (g) of said Section
7.01 any reference to the continuance, the continuance in effect for any period
of days, or the giving of written notice of any failure on the part of the
Corporation or of any decree or order, referred to in such definition.
Section 11.04. The Trustee, or any successor to it hereafter
appointed, may at any time resign and be discharged of the trusts hereby created
as to any or all series of Debt Securities for which it serves as Trustee by
giving to the Corporation notice in writing and by mailing notice thereof to the
holders of the Debt Securities of such series at their addresses as the same
shall then appear in the register of the Corporation. Such resignation shall
take effect upon the appointment by the holders of the Debt Securities of such
series or by the Corporation as hereinafter provided of a successor Trustee
eligible under Section 11.05 and not disqualified under Section 11.06, and the
acceptance of such appointment by such successor Trustee. Any Trustee hereunder
may be removed with respect to any series at any time by the filing with such
Trustee and the delivery to the Corporation of an instrument in writing signed
by the holders of a majority in principal amount of the Debt Securities of such
series then outstanding, specifying such removal and the date when it shall
become effective.
Upon its resignation or removal, any Trustee shall be entitled
to the payment of reasonable compensation for the services rendered hereunder by
such Trustee and to the payment of all reasonable expenses incurred hereunder
and all moneys then due it hereunder.
Section 11.05. There shall at all times be a Trustee under
this Indenture; and such Trustee shall at all times be (i) a corporation
organized and doing business under the laws of the United States of America or
any State thereof, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal or State
authority and which has a combined capital and surplus of not less than
$5,000,000, or (ii) a corporation or other person organized and doing business
under the laws of a foreign government that the Securities and Exchange
Commission shall have permitted, pursuant to the Trust Indenture Act of 1939, to
act as sole trustee under an indenture qualified or to be qualified pursuant
thereto and which has a combined capital and surplus of not less than
$5,000,000; provided that such corporation or other person (A) is authorized
under such laws to exercise corporate trust powers and (B) is subject to
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees. For the purposes
of this Section 11.05, the combined capital and surplus of any such Trustee
shall be deemed to be the combined capital and surplus as set forth in the most
recent report of its condition published by such Trustee, provided that such
reports are published at least annually, pursuant to law or to the requirements
of a Federal, State or foreign supervising or examining authority. Neither the
Corporation nor any person directly or indirectly controlling, controlled by, or
under common control with the Corporation shall serve as Trustee hereunder. If
such Trustee or any successor shall at any time cease to have the qualifications
prescribed in this Section 11.05, it shall promptly resign as Trustee hereunder.
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Section 11.06. The Trustee shall comply with Section 310(b) of
the Trust Indenture Act of 1939.
Section 11.07. In case at any time the Trustee shall resign
with respect to one or more series of Debt Securities, or shall be removed
(unless the Trustee shall be removed with respect to one or more series of Debt
Securities as provided in subdivision (c) of Section 11.06, in which event the
vacancy shall be filled as provided in said subdivision), or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or if a
receiver of the Trustee or of its property shall be appointed, or if 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, a
successor Trustee may be appointed by the holders of a majority in principal
amount of the Debt Securities of the applicable series then outstanding (each
series voting as a class) by an instrument or concurrent instruments in writing
signed in duplicate by such holders and filed, one original thereof with the
Corporation and the other with the successor Trustee; but, until a successor
Trustee shall have been so appointed by the holders of Debt Securities of the
applicable series as herein authorized, the Corporation by a Board Resolution
(or, in case all or substantially all the assets of the Corporation shall be in
the possession of one or more receivers lawfully appointed, or of trustees or
custodians in bankruptcy or reorganization proceedings (including a trustee or
trustees or a custodian or custodians appointed under the provisions of Title 11
of the United States Code, as now constituted or as hereafter in effect), or of
assignees for the benefit of creditors, such receivers, trustees, custodians, or
assignees, as the case may be, by an instrument in writing), shall appoint a
successor Trustee. Subject to the provisions of Sections 11.05 and 11.06, upon
the appointment as aforesaid of a successor Trustee, the Trustee shall cease to
be Trustee as to the applicable series of Debt Securities hereunder. After any
such appointment other than by the holders of the applicable series of Debt
Securities, the person making such appointment shall forthwith cause notice
thereof to be mailed to the holders of the applicable series of Debt Securities
at their addresses as the same then appear in the register of the Corporation;
but any successor Trustee so appointed shall, immediately and without further
act, be superseded by a successor Trustee appointed by the holders of the
applicable series of Debt Securities in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Corporation, or by such receivers, trustees,
custodians, or assignees.
If any Trustee shall resign because of a conflict of interest
as provided in subdivision (a) of Section 11.06 and a successor Trustee shall
not have been appointed by the Corporation or by the holders of the applicable
series of Debt Securities or, if any successor Trustee so appointed shall not
have accepted its appointment within 30 days after such appointment shall have
been made, the resigning Trustee may apply to any court of competent
jurisdiction for the appointment of a successor Trustee. If in any other proper
case a successor Trustee shall not be appointed pursuant to the foregoing
provisions of this Section 11.07 within three months after such appointment
might have been made hereunder, the holder of any Debt Security of the
applicable series or any retiring Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Such court may thereupon, in any
such case, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
Any successor Trustee appointed hereunder shall execute,
acknowledge, and deliver to its predecessor Trustee and to the Corporation, and,
if applicable, to the receivers,
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trustees, custodians, assignees, or court appointing it, as the case may be, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee as to each applicable series of Debt
Securities shall become effective and such successor Trustee, without any
further act, deed, or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties, and obligations of such predecessor
Trustee with respect to such series with like effect as if originally named as
Trustee hereunder with respect to such series, and such predecessor Trustee,
upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to pay over, and such successor Trustee shall be entitled to
receive, all moneys on deposit with or held by such predecessor Trustee as
Trustee hereunder with respect to such series, subject, nevertheless, to the
lien provided for in Section 11.01. Nevertheless, on the written request of the
Corporation or of the successor Trustee or of the holders of at least 10% in
principal amount of the applicable series of Debt Securities then outstanding,
such predecessor Trustee, upon payment of its said charges and disbursements,
shall execute and deliver an instrument transferring to such successor Trustee
upon the trusts herein expressed all the rights, powers, and trusts of such
predecessor Trustee with respect to such series, and shall assign, transfer, and
deliver to the successor Trustee all moneys and properties held by such
predecessor Trustee with respect to such series; and, upon request of any such
successor Trustee, the Corporation shall make, execute, acknowledge, and deliver
any and all instruments in writing for more fully and effectually vesting in and
confirming to such successor Trustee all such authority, rights, powers, trusts,
immunities, duties, and obligations.
Section 11.08. Any corporation or other person into which the
Trustee or any successor to it in the trusts created by this Indenture shall be
merged or converted, or any corporation or other person with which it or any
successor to it shall be consolidated, or any corporation or other person
resulting from any merger, conversion, or consolidation to which the Trustee or
any such successor to it shall be a party, or any corporation or other person to
which the Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided,
however, that any such corporation or other person shall be otherwise qualified
and eligible under this Article Eleven.
Section 11.09. The Trustee shall comply with Section 311(a) of
the Trust Indenture Act of 1939, excluding any creditor relationship listed in
Section 311(b) thereof. The Trustee, upon its resignation or removal, shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 as indicated
therein.
Section 11.10. Except as otherwise provided in Section 11.02,
and subject to the provisions of Section 15.04 with respect to the certificates
required thereby, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such
matters (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by a certificate
with respect thereto signed by the Chairman, Vice Chairman, President, or one of
the Vice Presidents and by the Treasurer or one of the Assistant Treasurers or
by the Secretary or one of the Assistant Secretaries of the Corporation and
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delivered to the Trustee, and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered, or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 11.11. In the event that the Trustee is also acting as
Paying Agent, Authenticating Agent, Calculation Agent or Registrar hereunder,
the rights and protections afforded to the Trustee pursuant to this Article
Eleven shall also be afforded to such Paying Agent, Authenticating Agent,
Calculation Agent or Registrar.
ARTICLE TWELVE
DEFEASANCE
Section 12.01. If at any time (a) the Corporation shall have
paid or caused to be paid the principal of and interest on all the Debt
Securities of any series outstanding hereunder, as and when the same shall have
become due and payable, or (b) the Corporation shall have delivered to the
Trustee for cancellation all Debt Securities of any series theretofore
authenticated (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.07 or paid), and if, in any such case, the Corporation shall also pay
or cause to be paid all other sums payable hereunder by the Corporation with
respect to Debt Securities of such series, then this Indenture shall cease to be
of further effect with respect to Debt Securities of such series (except as to
(i) rights of registration of transfer and exchange, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Debt Securities, (iii)
rights of the Debt Securityholders to receive payments of principal thereof and
interest thereon from the trust fund established pursuant to Section 12.02, and
remaining rights of the Debt Securityholders to receive mandatory sinking fund
payments, if any, from the trust fund established pursuant to Section 12.02,
(iv) the rights, obligations and immunities of the Trustee hereunder, (v) the
rights of the Debt Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, (vi) all other obligations of the Corporation in Sections 2.04, 2.06,
2.07, 10.03, 11.01, 11.04, 11.07 and 12.06 and (vii) the Corporation's rights
pursuant to Sections 11.04, 11.07, 12.05 and 12.06), and the Trustee, on demand
of the Corporation accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Corporation, shall execute proper
instruments acknowledging such satisfaction and discharging of this Indenture
with respect to Debt Securities of such series. The Corporation agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Debt Securities of such series.
Section 12.02. For purposes of Section 12.01, the Corporation
shall be deemed to have paid the principal of and interest on Debt Securities of
any series outstanding hereunder as and when the same shall have become due and
payable, if the Company shall have irrevocably deposited or caused to be
deposited in trust with the Trustee funds in cash and/or Governmental
Obligations sufficient to provide for timely payment of principal of, premium,
if any, and interest on the Debt Securities of such series to the stated
maturity or redemption, as the case may be, the sufficiency of which shall be
verified in a written report of a nationally recognized, independent public
accounting firm acceptable to the Trustee; provided, however, that (i) in order
to have
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money available on a payment date to pay principal or interest on the Debt
Securities of such series, the Governmental Obligations shall be payable as to
principal and interest on or before such payment date in such amounts as will
provide the necessary money; and (ii) the Corporation shall obtain an Opinion of
Counsel (which may be based on a ruling from, or published by, the Internal
Revenue Service) to the effect that holders of Debt Securities of that series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amounts and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred; and provided further, however, that notwithstanding the foregoing,
with respect to any series of Debt Securities which shall at the time be listed
for trading on The New York Stock Exchange, there shall be no deposit of funds
in cash and/or in Governmental Obligations with the Trustee to pay the principal
amount, the redemption price or any installment of interest in order to
discharge the Corporation's obligation in respect of any such payment if at such
time the rules of The New York Stock Exchange prohibit such deposit with the
Trustee. The Corporation shall provide the Trustee an Officers' Certificate
stating whether such series of Debt Securities is so listed at the time of such
defeasance.
Section 12.03. Debt Securities of a series shall be deemed to
have been paid in full as between the Corporation and the respective holders
(and future holders) of Debt Securities of such series upon the satisfaction and
discharge of the Indenture with respect to Debt Securities of such series
pursuant to Section 12.01, except that in the case of such satisfaction and
discharge as a result of compliance with Section 12.02, the Debt Securities of
such series shall be deemed to have been paid in full as between the Corporation
and the respective holders (and future holders) of Debt Securities of such
series only if (1) the deposit in trust with the Trustee by the Corporation of
the funds in cash and/or Governmental Obligations as provided in Section 12.02
is not subsequently deemed a preference under the United States Bankruptcy Code
as then in effect, (2) such defeasance does not result in a default under this
Indenture and (3) the Corporation provides the Trustee an Officers' Certificate
stating that the Corporation has complied with all conditions precedent to such
defeasance.
Section 12.04. Subject to Section 12.06, all money or
Governmental Obligations deposited with the Trustee pursuant to Section 12.02
shall be held in trust and applied by it to the payment, either directly or
through the paying agent (including the Corporation acting as its own paying
agent), to the holders of the particular Debt Securities of such series for the
payment or redemption of which such money or Governmental Obligations shall have
been deposited with the Trustee, of all sums due and to become due thereon for
principal, premium, if any, and interest. To facilitate the defeasance of Debt
Securities of a series, upon receipt of any funds in cash or payment in respect
of any Governmental Obligations deposited with it pursuant to Section 12.02 and
at the written direction of the Corporation, the Trustee may invest such funds
or reinvest the proceeds of such payment in Governmental Obligations sufficient
to provide for timely payment of principal, premium, if any, and interest on the
Debt Securities to the stated maturity or redemption, as the case may be.
Section 12.05. In connection with the satisfaction and
discharge of this Indenture with respect to Debt Securities of any series, all
money or Governmental Obligations then held by the paying agent under the
provisions of this Indenture with respect to such series of Debt Securities
shall, upon demand of the Corporation, be paid or delivered to the Trustee and
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thereupon the paying agent, if other than the Trustee, shall be released from
all further liability with respect to such money or Governmental Obligations.
Section 12.06. After full payment of any and all amounts due
and owing (i) pursuant to any provision of this Indenture and (ii) with respect
to Debt Securities of a series, the Trustee and the paying agent, if other than
the Trustee, shall promptly pay to the Corporation upon written request any
excess money, Governmental Obligations or Debt Securities of such series held by
them at any time. Any money or Governmental Obligations deposited with or paid
to the Trustee or the paying agent for the payment of the principal of, premium,
if any, or interest on any Debt Security of any series and not applied but
remaining unclaimed for two years after the date upon which such principal,
premium, if any, or interest shall become due and payable, shall, upon the
written request of the Corporation and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws, be
repaid or delivered to the Corporation by the Trustee for such series or by the
paying agent, if other than the Trustee, and the holder of the Debt Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Corporation for any payment which such Debt Securityholder may be
entitled to collect, and all liability of the Trustee or the paying agent, if
other than the Trustee, with respect to such money or Governmental Obligations
shall thereupon cease.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS
Section 13.01. No recourse shall be had for the payment of the
principal of (and premium, if any) or interest, if any, on any Debt Security, or
for any claim based thereon or otherwise in respect thereof or of the
indebtedness represented thereby, or upon any obligation, covenant, or agreement
of this Indenture, against any incorporator, stockholder, officer, or director,
as such, past, present, or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Debt
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer, or director, as such, past, present, or future, of the Corporation or
of any successor corporation, either directly or through the Corporation or any
successor corporation, because of the incurring of the indebtedness hereby
authorized, or under or by reason of any of the obligations, covenants,
promises, or agreements contained in this Indenture or in any of the Debt
Securities or to be implied herefrom or therefrom, and that all liability, if
any, of that character against every such incorporator, stockholder, officer,
and director is, by the acceptance of the Debt Securities, and as a condition
of, and as part of the consideration for, the execution of this Indenture and
the issue of the Debt Securities, expressly waived and released.
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ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section 14.01. The Corporation (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 one or more of or all the following purposes:
(a) to add to the covenants and agreements of the
Corporation, to be observed thereafter and during the period, if any, in such
supplemental indenture or indentures expressed, for the protection or benefit of
the holders of the Debt Securities of any or all series (and if such covenants
and agreements are to be for less than all series of Debt Securities, stating
that such covenants or agreements are expressly being included for the benefit
of such series);
(b) to evidence the succession of another corporation
to the Corporation, or successive successions, and the assumption by a successor
corporation of the covenants and obligations of the Corporation in the Debt
Securities and in this Indenture or any supplemental indenture contained;
(c) to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture, or to make
any other provision in regard to matters or questions arising under this
Indenture which the Board of Directors of the Corporation may deem necessary or
desirable and which shall not adversely affect the interests of the holders of
the Debt Securities in any material respect;
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Debt Securities
of one or more series or 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 trust hereunder by more than one trustee;
(e) to establish the form or terms of Debt Securities
of any series as permitted by Sections 2.01 and 3.01 or to authorize the
issuance of additional Debt Securities of a series previously authorized or to
add to the conditions, limitations or restrictions on the authorized amount,
terms or purposes of issue, authentication or delivery of the Debt Securities of
any series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed;
(f) to add, delete or modify any covenant, agreement
or events of default with respect to all or any series of Debt Securities, the
form and terms of which are being established pursuant to such supplemental
indenture as permitted in Sections 2.01 and 3.01 (and, if any such covenant,
agreement or event of default is applicable to fewer than all such series of the
Debt Securities, specifying the series to which such covenant, agreement or
event of default is applicable), and to specify the rights and remedies of the
Trustee and the holders of such Debt Securities in connection therewith; or
(g) to provide for the issuance under this Indenture
of Debt Securities in coupon form (including Debt Securities registrable as to
principal only) and to provide for
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exchangeability of such Debt Securities for Debt Securities of such series
issued hereunder in fully registered form and to make all appropriate changes
for such purpose.
Subject to the provisions of Section 14.03, the Trustee is
authorized to join with the Corporation in the execution of any such
supplemental indenture, and to make the further agreements and stipulations
which may be therein contained.
Any supplemental indenture authorized by the provisions of
this Section 14.01 may be executed by the Corporation and the Trustee without
the consent of the holders of any of the Debt Securities at the time
outstanding, notwithstanding any of the provisions of Section 14.02.
Section 14.02. With the consent (evidenced as provided in
Article Eight) of the holders of not less than 66 2/3% in aggregate principal
amount of the outstanding Debt Securities of each series affected thereby, at
the time outstanding, the Corporation, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time 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 any supplemental indenture or of modifying in any manner the rights of the
holder of any Debt Security; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debt Security, or reduce
the rate or extend the time of payment of interest thereon, or reduce the amount
of the principal (or premium, if any) thereof, or reduce the amount of principal
of an Original Issue Discount Security which would be due and payable upon a
declaration of acceleration of the maturity thereof, without the consent of the
holder of such Debt Security, or (ii) reduce the aforesaid percentage of Debt
Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the Debt
Securities of all such series affected thereby then outstanding, or (iii)
modify, without the written consent of the Trustee, the rights, duties, or
immunities of the Trustee.
It shall not be necessary for the consent of the holders of
the Debt Securities of any series under this Section 14.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Any consent given by any holder of a Debt Security under this
Section 14.02 shall be irrevocable for a period of six months after the day of
execution thereof, but may be revoked at any time thereafter by such holder or
by his successor in title by filing written notice of such revocation with the
Trustee at its corporate trust office; provided, however, that such consent
shall not be revocable after the holders of not less than 66 2/3% in aggregate
principal amount of the Debt Securities of the series of which such Debt
Security is a part at the time outstanding shall have consented to such
supplemental indenture. No notation on any Debt Security of the fact of such
consent shall be necessary, but any such written consent by the holder of any
Debt Security shall be conclusive and binding on all future holders and owners
of the same Debt Security and of all Debt Securities delivered in exchange
therefor, unless revoked in the manner and during the period provided in this
Section 14.02.
Promptly after the execution by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
14.02, the Corporation shall
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mail a notice, setting forth in general terms the substance of such supplemental
indenture, to the holders of Debt Securities of the affected series at their
addresses as the same shall then appear in the register of the Corporation. Any
failure of the Corporation to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 14.03. Upon the request of the Corporation,
accompanied by an Officers' Certificate and Opinion of Counsel required by
Section 15.04 and by:
(a) a supplemental indenture duly executed on behalf
of the Corporation;
(b) a copy of a Board Resolution authorizing the
execution and delivery of said supplemental indenture;
(c) an Opinion of Counsel, stating that said
supplemental indenture complies with, and that the execution thereof is
authorized or permitted by, the provisions of this Indenture; and
(d) if said supplemental indenture shall be executed
pursuant to Section 14.02, evidence (as provided in Article Eight) of the
consent thereto of the Debt Securityholders required to consent thereto as in
Section 14.02 provided,
The Trustee shall join with the Corporation in the execution
of said supplemental indenture unless said supplemental indenture affects the
Trustee's own rights, duties, or immunities under this Indenture or otherwise or
is not reasonably acceptable to the Trustee, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into said supplemental
indenture; and, subject to the provisions of Section 11.02, the Trustee shall be
fully protected in executing any such supplemental indenture and accepting any
additional trusts created thereby or any modifications effected thereby of this
Indenture or of the trusts created by this Indenture, in reliance upon such
Board Resolution and Opinion of Counsel and (if required as aforesaid) evidence
of consent of Debt Securityholders.
Section 14.04. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article Fourteen, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and,
except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties, and immunities under this Indenture
of the Trustee, the Corporation, and the holders of Debt Securities shall
thereafter be determined, exercised, and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 14.05. Debt Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article Fourteen may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Corporation or
the Trustee shall so determine, new Debt Securities so modified as to conform,
in the opinion of the Trustee and the Board of Directors of the Corporation, to
any modification of this Indenture contained in any such supplemental indenture
may be prepared by
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the Corporation, authenticated, and delivered as hereinbefore provided in
exchange for the Debt Securities of such series then outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
holders of the Debt Securities.
Section 14.06. Every supplemental indenture executed pursuant
to the provisions of this Article Fourteen shall conform to the requirements of
the Trust Indenture Act of 1939.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Subject to the provisions of Section 6.04,
nothing contained in this Indenture or in the Debt Securities shall be deemed to
prevent the consolidation or merger of the Corporation with or into any other
corporation, or the merger into the Corporation of any other corporation, or the
sale by the Corporation of its property and assets as, or substantially as, an
entirety, or otherwise; provided, however, that (1) in case of any such
consolidation or merger, the corporation resulting from such consolidation or
any corporation other than the Corporation into which such merger shall be made
shall succeed to and be substituted for the Corporation with the same effect as
if it had been named as the Corporation herein and shall become liable and be
bound for, and shall expressly assume, by indenture executed and delivered to
the Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all the Debt Securities then outstanding and the
performance and observance of each and every covenant and condition of this
Indenture on the part of the Corporation to be performed or observed, and (2) as
a condition of any such sale of the property and assets of the Corporation as,
or substantially as, an entirety, the corporation to which such property and
assets shall be sold shall (a) expressly assume, as a part of the purchase price
thereof, the due and punctual payment of the principal of (and premium, if any)
and interest, if any, on all the Debt Securities and the performance and
observance of all the covenants and conditions of this Indenture on the part of
the Corporation to be performed or observed, and (b) simultaneously with the
delivery to it of the conveyances or instruments of transfer of such property
and assets, execute and deliver to the Trustee a proper indenture in form
satisfactory to the Trustee, whereby such purchasing corporation shall so assume
the due and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities then outstanding and the
performance and observance of each and every covenant and condition of this
Indenture on the part of the Corporation to be performed or observed, to the
same extent that the Corporation is bound and liable.
The Corporation will not consolidate with any other
corporation or accept a merger of any other corporation into the Corporation or
permit the Corporation to be merged into any other corporation, or sell its
properties and assets as, or substantially as, an entirety, except upon the
terms and conditions set forth in this Section 15.01 and Section 6.04. Upon any
consolidation or merger, or any sale of the properties and assets of the
Corporation as, or substantially as, an entirety in accordance with the
provisions of this Section 15.01, the corporation formed by such consolidation
or into which the Corporation shall have been merged or to which such sale shall
have been made shall succeed to and be substituted for the Corporation with the
same effect as if it had been named herein as a party hereto, and thereafter
from time to time such corporation may exercise each and every right and power
of the
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Corporation under this Indenture, in the name of the Corporation or in its own
name; and any act or proceeding by any provision of this Indenture required or
permitted to be done by any board or officer of the Corporation may be done with
like force and effect by the like board or officer of any corporation that shall
at the time be the successor of the Corporation hereunder.
Section 15.02. Nothing in this Indenture expressed and nothing
that may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or to give to, any person or corporation other than
the parties hereto and the holders of the Debt Securities any right, remedy, or
claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise, or agreement hereof, and all covenants, conditions,
stipulations, promises, and agreements in this Indenture contained shall be for
the sole and exclusive benefit of the parties hereto and their successors and of
the holders of the Debt Securities.
Section 15.03. Whenever in this Indenture the Corporation
shall be required to do or not to do anything "so long as any of the Debt
Securities shall be outstanding", the Corporation, notwithstanding any such
provision, shall not be required to comply with such provision if it shall be
entitled to have this Indenture satisfied and discharged pursuant to the
provisions hereof, although the holders of any of the Debt Securities shall have
failed to present and surrender them for payment pursuant to the provisions of
this Indenture.
Section 15.04. As evidence of compliance with the conditions
precedent provided for in this Indenture (including any covenants compliance
with which constitutes a condition precedent) which relate to the satisfaction
and discharge of this Indenture or to any other action to be taken or omitted to
be taken by the Trustee at the request or upon the application of the
Corporation, the Corporation will furnish to the Trustee an Officers'
Certificate, signed as provided in this Section 15.04, stating that such
conditions precedent have been complied with and an Opinion of Counsel stating
that in his opinion such conditions precedent have been complied with.
Unless herein otherwise expressly provided, any order, notice,
request, certificate, or statement of the Corporation required or permitted to
be filed with the Trustee, or to be made or given under any provision hereof,
shall be sufficient if it shall have been signed by the Chairman, Vice Chairman,
President, or one of the Vice Presidents and by the Treasurer or one of the
Assistant Treasurers or the Secretary or one of the Assistant Secretaries of the
Corporation.
In any case in which it is provided herein that an Opinion of
Counsel shall or may be furnished to the Trustee, the counsel rendering such
opinion may be counsel for the Corporation.
Each Officers' Certificate or Opinion of Counsel with respect
to compliance with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate or opinion has
read such condition or covenant, (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 such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
condition or covenant has
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been complied with, and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Notwithstanding any provision of this Indenture authorizing
the Trustee conclusively to rely upon any certificates or opinions, the Trustee,
before granting any application by the Corporation to take or refrain from
taking any other action in reliance thereon, may, but shall not be obligated to,
require any further evidence or make any further investigation as to the facts
or matters stated therein which it may, in good faith, deem reasonable in the
circumstances, and in connection therewith the Trustee may examine or cause to
be examined the pertinent books, records, and premises of the Corporation or of
any subsidiary; and the Trustee shall, in any such case, require such further
evidence or make such further investigation as may be requested by the holders
of a majority in principal amount of the Debt Securities of all series (each
series voting as a class) affected thereby then outstanding; provided, that, if
payment to the Trustee of the costs, expenses, and liabilities likely to be
incurred by it in making such investigation is not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee before making such investigation may require reasonable indemnity
against such costs, expenses, or liabilities. Any further evidence which may be
requested by the Trustee pursuant to any of the provisions of this paragraph
shall be furnished by the Corporation at its own expense; and any costs,
expenses, and liabilities incurred by the Trustee pursuant to any of the
provisions of this paragraph shall be paid by the Corporation, or, if paid by
the Trustee, shall be repaid by the Corporation, upon demand, with interest at
the rate of 6% per annum, and, until such repayment, shall be secured by a lien
on any moneys held by the Trustee hereunder prior to any rights therein of the
holders of Debt Securities.
Section 15.05. All Debt Securities paid, exchanged,
surrendered for registration of transfer, or otherwise retired shall, if
surrendered to the Corporation or to any paying agent, be delivered to the
Trustee for cancellation and shall be canceled by it or, if surrendered to the
Trustee, shall be canceled by it, and, except as otherwise provided in Article
Two, Section 4.03 and Section 14.05, no Debt Securities shall be issued under
this Indenture in lieu thereof. The Trustee shall make appropriate notations in
its records in respect of all such Debt Securities and shall deliver the
canceled Debt Securities to or on the order of the Corporation or shall dispose
of such Debt Securities as directed by the Corporation and deliver a certificate
of such disposition to the Corporation. If the Corporation shall acquire any of
the Debt Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Debt Securities unless
and until the same are surrendered to the Trustee for cancellation.
Section 15.06. If any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by operation of subsection (c)
of Section 318 of the Trust Indenture Act of 1939, the imposed duties shall
control. The provisions of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 that impose duties on any person (including provisions
automatically deemed included in an indenture unless the indenture provides that
such provisions are excluded) are a part of and govern this Indenture.
Section 15.07. Any notice or demand authorized by this
Indenture to be served on or given to the Corporation shall be sufficiently
served or given for all purposes if it shall be sent by registered mail to the
Corporation addressed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
-00-
XX 00000, or at such other address as may have been furnished in writing to the
Trustee by the Corporation.
Any notice or demand authorized by this Indenture to be served
on or given to the Trustee shall be sufficiently served or given for all
purposes if it shall be sent by registered mail to the Trustee addressed to it
at the corporate trust office of the Trustee, or at such other address as may
have been furnished in writing to the Corporation by the Trustee.
Any notice required or permitted to be mailed to a Debt
Securityholder by the Corporation or the Trustee pursuant to the provisions of
this Indenture shall be deemed to be properly mailed by being deposited first
class postage prepaid, in a post office letter box in the United States
addressed to such Debt Securityholder at the address of such holder as shown in
the Debt Security register.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impractical to mail notice of any event to
Debt Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 15.08. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 15.09. This Indenture and each Debt Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
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IN WITNESS WHEREOF, CIT Group Inc. has caused this Indenture
to be executed in its corporate name by its Chairman, Vice Chairman, President,
or one of its Vice Presidents, and its corporate seal to be hereunto affixed,
Bank One Trust Company, N.A., in evidence of its acceptance of the trust hereby
created, has caused this Indenture to be executed in its corporate name by one
of its authorized officers, and its seal to be hereunto affixed, all as of the
date first above written and Bank One NA, London Branch, in evidence of its
acceptance of the appointment as London Paying Agent and London Calculation
Agent hereunder, has caused this First Supplemental Indenture to be executed in
its corporate name by one of its authorized officers, and its seal to be
hereunto affixed and to be attested by one of its authorized officers, all as of
the date first above written.
CIT GROUP INC.
By /s/ XXXXX X. XXXXX
------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President/
Treasurer
Attest:
-------------------------
Title:
[Corporate Seal]
BANK ONE TRUST COMPANY, N.A., as Trustee
By /s/ XXX XXXXXXXX
----------------------------
Name: Xxx Xxxxxxxx
Title: Account Executive
Attest:
/s/ XXXXX XXXXXX
-------------------------
Title: Vice President
[Corporate Seal]
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[continuation of signature page to Indenture]
BANK ONE NA, LONDON BRANCH
as London Paying Agent and London
Calculation Agent
By /s/ XXXX XXXX
------------------------------
Name: Xxxx Xxxx
Title: Assistant Vice President
Attest:
-----------------------
Title:
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