Exhibit 4.1
AETNA LIFE AND CASUALTY COMPANY
(To Be Renamed Aetna Services, Inc.)
ISSUER
AETNA INC.,
GUARANTOR
AND
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
__________
INDENTURE
Dated as of July 1, 1996
__________
Senior Debt Securities
Reconciliation and tie between certain Sections of
this Indenture, dated as of July 1, 1996, and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
310(a)(1) .......................... 609
(a)(2) .......................... 609
(a)(3) .......................... Not Applicable
(a)(4) .......................... Not Applicable
(b) .......................... 608
.......................... 610
311(a) .......................... 613
(b) .......................... 613
312(a) .......................... 701
.......................... 702(a)
(b) .......................... 702(b)
(c) .......................... 702(c)
313(a) .......................... 703(a)
(b) .......................... 703(a)
(c) .......................... 703(a)
(d) .......................... 703(b)
314(a) .......................... 704
(a)(4) .......................... 101
.......................... 1004
(b) .......................... Not Applicable
(c)(1) .......................... 102
(c)(2) .......................... 102
(c)(3) .......................... Not Applicable
(d) .......................... Not Applicable
(e) .......................... 102
315(a) .......................... 601
(b) .......................... 602
(c) .......................... 601
(d) .......................... 601
(e) .......................... 514
316(a) .......................... 101
(a)(1)(A).......................... 502
.......................... 512
(a)(1)(B).......................... 513
(a)(2) .......................... Not Applicable
(b) .......................... 508
(c) .......................... 104(c)
317(a)(1) .......................... 503
(a)(2) .......................... 504
(b) .......................... 1003
318(a) .......................... 107
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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Page
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PARTIES............................................... 1
RECITALS.............................................. 1
ARTICLE ONE
___________
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions:.......................... 2
Act................................... 2
Authenticating Agent.................. 2
Board of Directors.................... 3
Board Resolution...................... 3
Business Day.......................... 3
Commission............................ 3
Common Stock.......................... 3
Company............................... 4
Company Request; Company Order........ 4
Corporate Trust Office................ 4
corporation........................... 4
Covenant Defeasance................... 4
Defaulted Interest.................... 4
Defeasance............................ 4
Depositary............................ 4
Event of Default...................... 4
Exchange Act.......................... 4
Floating or Adjustable Rate Provision. 4
Floating or Adjustable Rate Security.. 5
Foreign Government Obligations........ 5
Global Security....................... 5
Guarantee............................. 5
Guaranteed Obligations................ 5
Guarantor............................. 5
Holder................................ 5
Indenture............................. 5
interest.............................. 6
Interest Payment Date................. 6
Maturity.............................. 6
Non-Recourse Debt..................... 6
Notice of Default..................... 6
Officers' Certificate................. 6
Opinion of Counsel.................... 6
Original Issue Discount Security...... 6
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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Outstanding........................... 7
Paying Agent.......................... 8
Person................................ 8
Place of Payment...................... 8
Predecessor Security.................. 8
Principal Subsidiary.................. 8
Redemption Date....................... 9
Redemption Price...................... 9
Regular Record Date................... 9
Responsible Officer................... 9
Securities............................ 9
Security Register and Security
Registrar............................ 9
Special Record Date................... 10
Stated Maturity....................... 10
Subsidiary............................ 10
Trustee............................... 10
Trust Indenture Act................... 10
U.S. Government Obligations........... 10
Vice President........................ 10
Section 102. Compliance Certificates and Opinions.. 10
Section 103. Form of Documents Delivered to Trustee 11
Section 104. Acts of Holders; Record Dates......... 12
Section 105. Notices, Etc., to Trustee, Company
and Guarantor........................ 14
Section 106. Notice to Holders; Waiver............. 15
Section 107. Conflict with Trust Indenture Act..... 15
Section 108. Effect of Headings and
Table of Contents.................... 16
Section 109. Successors and Assigns................ 16
Section 110. Separability Clause................... 16
Section 111. Benefits of Indenture................. 16
Section 112. Governing Law......................... 16
Section 113. Legal Holidays........................ 16
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. ... 17
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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ARTICLE TWO
___________
SECURITY FORMS
Section 201. Forms Generally....................... 17
Section 202. Form of Face of Security.............. 18
Section 203. Form of Reverse of Security........... 21
Section 204. Form of Legend for Global Securities.. 26
Section 205. Form of Trustee's Certificate of
Authentication....................... 27
Section 206. Form of Guarantee..................... 27
ARTICLE THREE
_____________
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.. 30
Section 302. Denominations......................... 34
Section 303. Execution, Authentication, Delivery
and Dating........................... 34
Section 304. Temporary Securities.................. 37
Section 305. Registration, Registration of Transfer
and Exchange......................... 38
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities........................... 40
Section 307. Payment of Interest; Interest Rights
Preserved............................ 41
Section 308. Persons Deemed Owners................. 43
Section 309. Cancellation.......................... 43
Section 310. Computation of Interest............... 44
ARTICLE FOUR
____________
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture 44
Section 402. Application of Trust Fund............. 46
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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ARTICLE FIVE
____________
REMEDIES
Section 501. Events of Default..................... 47
Section 502. Acceleration of Maturity; Rescission
and Annulment........................ 50
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee........... 52
Section 504. Trustee May File Proofs of Claim...... 54
Section 505. Trustee May Enforce Claims Without
Possession of Securities............. 55
Section 506. Application of Money Collected........ 55
Section 507. Limitation on Suits................... 55
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest............................. 56
Section 509. Restoration of Rights and Remedies.... 57
Section 510. Rights and Remedies Cumulative........ 57
Section 511. Delay or Omission Not Waiver.......... 57
Section 512. Control by Holders.................... 58
Section 513. Waiver of Past Defaults............... 58
Section 514. Undertaking for Costs................. 59
ARTICLE SIX
___________
THE TRUSTEE
Section 601. Certain Duties and Responsibilities... 60
Section 602. Notice of Defaults.................... 60
Section 603. Certain Rights of Trustee............. 60
Section 604. Not Responsible for Recitals or
Issuance of Securities............... 62
Section 605. May Hold Securities................... 62
Section 606. Money Held in Trust................... 62
Section 607. Compensation and Reimbursement........ 63
Section 608. Disqualification; Conflicting
Interests............................ 63
Section 609. Corporate Trustee Required;
Eligibility.......................... 64
Section 610. Resignation and Removal; Appointment of
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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Successor............................ 64
Section 611. Acceptance of Appointment by
Successor............................ 66
Section 612. Merger, Conversion, Consolidation or
Succession to Business............... 68
Section 613. Preferential Collection of Claims
Against Company or Guarantor......... 68
Section 614. Appointment of Authenticating Agent... 68
ARTICLE SEVEN
_____________
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
Section 701. Company and Guarantor to Furnish Trustee
Names and Addresses of Holders....... 70
Section 702. Preservation of Information;
Communications to Holders............ 71
Section 703. Reports by Trustee.................... 71
Section 704. Reports by Company and Guarantor...... 72
ARTICLE EIGHT
_____________
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Section 801. Company or Guarantor May Consolidate,
Etc., Only on Certain Terms.......... 72
Section 802. Successor Substituted................. 73
Section 803. Assumption by Guarantor or Subsidiary of
Company's Obligations................ 74
ARTICLE NINE
____________
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders........................... 75
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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Section 902. Supplemental Indentures with Consent of
Holders.............................. 77
Section 903. Execution of Supplemental Indentures.. 79
Section 904. Effect of Supplemental Indentures..... 79
Section 905. Conformity with Trust Indenture Act... 80
Section 906. Reference in Securities to Supplemental
Indentures........................... 80
Section 907. Waiver of Compliance by Holders....... 80
ARTICLE TEN
___________
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest............................ 80
Section 1002. Maintenance of Office or Agency
by Company and Guarantor............ 81
Section 1003. Money for Securities Payments to Be
Held in Trust....................... 82
Section 1004. Statement by Officers as to Default.. 83
Section 1005. Limitations on Liens on Common Stock of
Principal Subsidiaries.............. 84
ARTICLE ELEVEN
______________
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article............. 84
Section 1102. Election to Redeem; Notice to Trustee 84
Section 1103. Selection by Trustee of Securities to
Be Redeemed......................... 85
Section 1104. Notice of Redemption................. 85
Section 1105. Deposit of Redemption Price.......... 86
Section 1106. Securities Payable on Redemption Date 86
Section 1107. Securities Redeemed in Part.......... 87
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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Page
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ARTICLE TWELVE
______________
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Company's Option to Effect
Defeasance or Covenant Defeasance... 87
Section 1202. Defeasance and Discharge............. 87
Section 1203. Covenant Defeasance.................. 88
Section 1204. Conditions to Defeasance or
Covenant Defeasance................. 89
Section 1205. Deposited Money and U.S. Government
Obligations or Foreign Government
Obligations to be Held In Trust;
Other Miscellaneous Provisions...... 92
Section 1206. Reinstatement........................ 93
ARTICLE THIRTEEN
________________
SINKING FUNDS
Section 1301. Applicability of Article............. 93
Section 1302. Satisfaction of Sinking Fund Payments
with Securities..................... 94
Section 1303. Redemption of Securities for Sinking
Fund................................ 94
ARTICLE FOURTEEN
________________
GUARANTEE OF SECURITIES
Section 1401. Guarantee............................ 95
Section 1402. Subrogation.......................... 96
Section 1043. Reinstatement........................ 96
Section 1404. Execution and Delivery of Guarantees. 96
TESTIMONIUM........................................... 97
SIGNATURES AND SEALS.................................. 97
ACKNOWLEDGMENTS....................................... 98
___________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-vii-
INDENTURE, dated as of July 1, 1996, among AETNA
LIFE AND CASUALTY COMPANY (to be renamed Aetna Services,
Inc.), a corporation duly organized and validly existing
under the laws of the State of Connecticut (herein called
the "Company"), having its principal office at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, AETNA INC.,
a corporation duly organized and existing under the laws of
the State of Connecticut (herein called the "Guarantor"),
having its principal office at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 and STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
association duly organized and existing under the laws of
the United States of America, as Trustee (herein called the
"Trustee").
RECITALS
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued
in one or more series as in this Indenture provided.
The Guarantor has duly authorized the
unconditional guarantee of the Securities on the terms
hereinafter set forth and the execution and delivery of the
Indenture.
All things necessary to make this Indenture a
valid agreement of the Company and the Guarantor, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
___________
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article
have the meanings assigned to them in this
Article and include the plural as well as the
singular;
(2) all other terms used herein which
are defined in the Trust Indenture Act or the
Securities Act of 1933, as amended, either
directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to
them in accordance with generally accepted
accounting principles, and, except as
otherwise herein expressly provided, the term
"generally accepted accounting principles"
with respect to any computation required or
permitted hereunder shall mean such
accounting principles as are generally
accepted at the date of such computation;
(4) the words "Article" and "Section"
refer to an Article and Section,
respectively, of this Indenture; and
(5) the words "herein", "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to
any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, has
the meaning specified in Section 104.
"Authenticating Agent" means any Person authorized
by the Trustee pursuant to Section 614 to act on behalf of
the Trustee to authenticate Securities of one or more
series.
"Board of Directors", when used with reference to
either the Company or the Guarantor, means either (i) the
Board of Directors of the Company or the Guarantor, as the
case may be, the Executive Committee of such Board of
Directors or any other duly authorized committee of
directors and/or officers appointed by such Board of
Directors or Executive Committee, or (ii) one or more duly
authorized officers of the Company or the Guarantor, as the
case may be, to whom the Board of Directors of the Company
or the Guarantor or a committee thereof has delegated the
authority to act with respect to the matters contemplated by
this Indenture.
-2-
"Board Resolution", when used with reference to
either the Company or the Guarantor, means (i) a copy of a
resolution certified by the Corporate Secretary or an
Assistant Corporate Secretary of the Company or the
Guarantor, as the case may be, to have been duly adopted by
the Board of Directors or a committee thereof and to be in
full force and effect on the date of such certification or
(ii) a certificate signed by the authorized officer or
officers of the Company or the Guarantor, as the case may
be, to whom the Board of Directors of the Company or the
Guarantor or a committee thereof has delegated its authority
(as described in the definition of Board of Directors), and
in each case, delivered to the Trustee.
"Business Day", when used with respect to any
Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Exchange Act, or, if at any time after the execution of
this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such
time.
"Common Stock" means with respect to any Principal
Subsidiary, stock of any class, however designated, except
stock which is non-participating beyond fixed dividend and
liquidation preferences and the holders of which have either
no voting rights or limited voting rights entitling them,
only in the case of certain contingencies, to elect less
than a majority of the directors (or persons performing
similar functions) of such Principal Subsidiary, and shall
include securities of any class, however designated, which
are convertible into such Common Stock.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order", when used
with reference to the Company or the Guarantor, means a
written request or order signed in the name of the Company
or of the Guarantor, as the case may be, by (i) any two of
the following individuals: the Chairman, the President, a
Vice Chairman or a Vice President, or (ii) by one of the
foregoing individuals and by any other Vice President, the
Treasurer, an Assistant Treasurer, the Corporate Secretary
-3-
or an Assistant Corporate Secretary or any other individual
authorized by the Board of Directors for such purpose, and
delivered to the Trustee.
"Corporate Trust Office" means the principal
office of the Trustee located at 000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxxxxxxx 00000 at which at any particular
time its corporate trust business shall be administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in
Section 1203.
"Defaulted Interest" has the meaning specified in
Section 307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means, with respect to Securities of
any series issuable in whole or in part in the form of one
or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section
301.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time, and any successor
statute thereto.
"Floating or Adjustable Rate Provision" means a
formula or provision, specified in or pursuant to a Board
Resolution or an indenture supplemental hereto, providing
for the determination, whether pursuant to objective factors
or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate
borne by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any
Security which provides for interest thereon at a periodic
rate that may vary from time to time over the term thereof
in accordance with a Floating or Adjustable Rate Provision.
"Foreign Government Obligations" has the meaning
specified in Section 1204.
"Global Security" means a Security that evidences
all or part of the Securities of any series and is
-4-
authenticated and delivered to, and registered in the name
of, the Depositary for such Securities or a nominee thereof.
"Guarantee" means any guarantee of the Guarantor
endorsed on a Security authenticated and delivered pursuant
to this Indenture and shall include the guarantee set forth
in Section 1401.
"Guaranteed Obligations" shall have the meaning
set forth in Section 1401.
"Guarantor" means the Person named as the
"Guarantor" in the first paragraph of this instrument until
a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof,
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 and any such supplemental indenture,
respectively. The term "Indenture" shall also include the
terms of particular series of Securities established as
contemplated by Section 301.
"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.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Non-Recourse Debt" means any indebtedness for
money borrowed as to which the liability of the Guarantor,
the Company or the Principal Subsidiaries is limited solely
to specific assets.
-5-
"Notice of Default" means a written notice of the
kind specified in Section 501(4).
"Officers' Certificate", when used with respect to
the Company or the Guarantor, means a certificate signed by
(i) any two of the following individuals: the Chairman, the
President, a Vice Chairman or a Vice President, or (ii) by
one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the
Corporate Secretary or an Assistant Corporate Secretary, of
the Company or the Guarantor, as the case may be, or any
other individual authorized by the Board of Directors of the
Company or the Guarantor, as the case may be, for such
purpose, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or
accounting officer of the Company or the Guarantor, as the
case may be.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or counsel to the Company
or the Guarantor, as the case may be, or who may be other
counsel reasonably satisfactory to the Trustee. Each such
opinion shall include the statements required by Section
314(e) of the Trust Indenture Act, if applicable.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
______
(i) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee
or any Paying Agent (other than the Company
or the Guarantor) in trust or set aside and
segregated in trust by the Company or the
Guarantor (if the Company or the Guarantor
shall act as Paying Agent) for the Holders of
such Securities; provided that, if such
________
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to
-6-
this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance
has been effected pursuant to Section 1202;
and
(iv) Securities which have been paid
pursuant to Section 306 or in exchange for or
in lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been
presented to the Trustee proof satisfactory
to it that such Securities are held by a bona
fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders
________ _______
of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (A) the
principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (B) the principal amount of
a Security denominated in one or more foreign currencies or
currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such
Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent
on the date of original issuance of such Security of the
amount determined as provided in (A) above) of such
Security, and (C) Securities owned by the Company, the
Guarantor or any other obligor upon the Securities or any
Subsidiary of the Company or the Guarantor or of such other
obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company, the Guarantor or any other
obligor upon the Securities or any Subsidiary of the
Company, the Guarantor or of such other obligor.
-7-
"Paying Agent" means any Person authorized by the
Company to pay the principal of or any premium or interest
on any Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where
the principal of and any premium and interest on the
Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Principal Subsidiary" means only Aetna Life
Insurance Company, Aetna Life Insurance and Annuity Company
and U.S. Healthcare, Inc., and any other Subsidiary of the
Guarantor which shall hereafter succeed by merger or
otherwise to a major part of the business of one or more of
the Principal Subsidiaries. The decision as to whether a
Subsidiary shall have succeeded to a major part of the
business of one or more of the Principal Subsidiaries shall
be made in good faith by the Board of Directors of the
Guarantor or a committee thereof by the adoption of a
resolution so stating, and the Guarantor shall within 30
days of the date of the adoption of such resolution deliver
to the Trustee a copy thereof, certified by the Corporate
Secretary or an Assistant Corporate Secretary of the
Guarantor.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated by
Section 301.
-8-
"Responsible Officer", when used with respect to
the Trustee, means the chairman or any vice-chairman of the
board of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president,
the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or
any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or
her knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any instalment of principal thereof or interest
thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation
more than 50% of the voting power of which is controlled,
directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person, or by such Person and one
or more other Subsidiaries of such Person. For the purposes
of this definition, "voting power" means the power to vote
for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of
that series.
-9-
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as in force at the date as of which this
instrument was executed; 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.
"U.S. Government Obligations" has the meaning
specified in Section 1204.
"Vice President", when used with respect to the
Company, the Guarantor or the Trustee, means any vice
president, whether or not designated by a number or a word
or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
____________________________________
Upon any application or request by the Company or
the Guarantor to the Trustee to take any action under any
provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be
given by an officer of the Company or the Guarantor, or an
Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture (excluding certificates provided for in Section
1004) shall include
(1) a statement that each individual
signing such certificate or opinion has read
such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature
and scope of the examination or investigation
upon which the statements or opinions
contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of
each such individual, such individual has
made such examination or investigation as is
necessary to enable such individual to
express an informed opinion as to whether or
-10-
not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the
opinion of each such individual, such
condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
______________________________________
In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the
Company or the Guarantor may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which its certificate or opinion is based
are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an
officer or officers of the Company or the Guarantor, as the
case may be, stating that the information with respect to
such factual matters is in the possession of the Company or
the Guarantor, as the case may be, unless such counsel
knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with
respect to such matters are erroneous.
Any certificate, statement or opinion of an
officer of the Company or the Guarantor or of counsel may be
based, insofar as it relates to accounting matters, upon a
certificate, opinion or representation by an accountant or
firm of accountants in the employ of the Company or the
Guarantor, as the case may be, unless such officer or
counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate, opinion
or representation with respect to such accounting matters
upon which its certificate, statement or opinion may be
based is erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
-11-
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
_____________________________
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company and the Guarantor.
Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee, the Company
and the Guarantor, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him or her the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall
also constitute sufficient proof of such signer's authority.
The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company or the Guarantor may, in the
circumstances permitted by the Trust Indenture Act, fix any
day as the record date for the purpose of determining the
Holders of Outstanding 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 Outstanding Securities of such series. If not
set by the Company or the Guarantor prior to the first
solicitation of a Holder of Securities of such series made
by any Person in respect of any such action, or, in the case
-12-
of any such vote, prior to such vote, the record date for
any such action or vote shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first
solicitation or vote, 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 Securities, only the Holders of 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.
(d) The ownership of Securities shall be proved
by the Security Register or by a certificate of the Security
Registrar.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) Without limiting the foregoing, a Holder
entitled hereunder to give or take any action hereunder with
regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any
different part of such principal amount.
Section 105. Notices, Etc., to Trustee, Company and
______________________________________
Guarantor.
_________
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Holder or by the
Company or by the Guarantor shall be
sufficient for every purpose hereunder if
made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust
Department, or
(2) the Company or the Guarantor by the
Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise
-13-
herein expressly provided) if in writing and
mailed, in the case of the Company,
first-class postage prepaid, to the Company
addressed to it at the address of its
principal office specified in the first
paragraph of this instrument, Attention:
Treasurer, or at any other address previously
furnished in writing to the Trustee by the
Company, with a copy to the Guarantor, and,
in the case of the Guarantor, first-class
postage prepaid and addressed to it at the
address of its principal office specified in
the first paragraph of this instrument,
Attention: Treasurer, or at any other
address previously furnished in writing to
the Trustee by the Guarantor, with a copy to
the Company.
Section 106. Notice to Holders; Waiver.
_________________________
Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears
in the Security Register, not later than the latest date (if
any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice; provided, however,
that the Company, the Guarantor or the Trustee, upon a good
faith determination that mailing is in the circumstances
impractical, may give such notice by any other method which,
in the reasonable belief of the Company or the Guarantor or,
in the case of the Trustee, of the Company, the Guarantor
and the Trustee, is likely to be received by the Holders.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance
upon such waiver.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the
Trustee
-14-
shall constitute a sufficient notification for every
purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
_________________________________
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified
or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect of Headings and Table of Contents.
_______________________________________
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 109. Successors and Assigns.
______________________
All covenants and agreements in this Indenture by
the Company or the Guarantor shall bind their successors and
assigns, whether so expressed or not.
Section 110. Separability Clause.
___________________
In case any provision in this Indenture or in the
Securities or in the Guarantees shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
_____________________
Nothing in this Indenture or in the Securities or
in the Guarantees, express or implied, shall give to any
Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
_____________
This Indenture and the Securities and the
Guarantees shall be governed by and construed in accordance
with the laws of the State of New York, but without regard
to principles of conflicts of laws.
-15-
Section 113. Legal Holidays.
______________
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not
be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of the Securities of
any series which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided
________
that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be,
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may
be.
Section 114. Personal Immunity from Liability for
____________________________________
Incorporators, Stockholders, Etc.
________________________________
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Security, or for any claim based thereon, or otherwise in
respect of any Security or of the Guarantees, or based on or
in respect of this Indenture or any indenture supplemental
hereto, against any incorporator, or against any past,
present or future stockholder, director or officer, as such,
of the Company or of any successor corporation, or of the
Guarantor or of any successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all
such liability being expressly waived and released as a
condition of, and as consideration for, the execution of
this Indenture and the issue of the Securities and the
Guarantees.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
_______________
The Securities of each series shall be in
substantially the form set forth in this Article, or in such
-16-
other form as shall be established by or pursuant to a Board
Resolution of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange
or as may, consistent herewith, be determined by the
officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a
Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company
and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Guarantees by the Guarantor to be endorsed on
the Securities of each series shall be substantially in such
form set forth in Section 206, or in such other form as
shall be established by or pursuant to a Board Resolution of
the Guarantor, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing
such Guarantees, all as evidenced by such execution. If the
form of Guarantees to be endorsed on the Securities of any
series is established by action taken pursuant to a Board
Resolution of the Guarantor, a copy of an appropriate record
of such action shall be certified by the Corporate Secretary
or an Assistant Corporate Secretary of the Guarantor and
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities and the Guarantees shall
be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
________________________
[Insert any legend required by the Internal
___________________________________________
Revenue Code and the regulations thereunder.]
____________________________________________
-17-
[AETNA LIFE AND CASUALTY COMPANY]
[AETNA SERVICES, INC.]
[...%] GUARANTEED [ZERO COUPON] [NOTE] [DEBENTURE] DUE...
No. ......... $ ........
[AETNA LIFE AND CASUALTY COMPANY] [AETNA SERVICES,
INC.], a Connecticut corporation (herein called the
"Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to
.............................................., or
registered assigns, the principal sum of ................
................... [Dollars] [if other than Dollars,
_______________________
substitute other currency or currency units] [if the
____________________________________________ _______
Security is to bear interest prior to Maturity, insert -- ,
______________________________________________________
and to pay interest thereon from ............. or from the
most recent Interest Payment Date to which interest has been
paid or duly provided for, [semi-annually on ............
and ............ in each year] [If other than semi-annual
__________________________
payments, insert frequency of payments and payment dates],
________
commencing ........., at [If the Security is to bear
___________________________
interest at a fixed rate, insert -- the rate of ....% per
________________________ ______
annum [If the Security is a Floating or Adjustable Rate
_________________________________________________
Security, insert -- a rate per annum [computed-determined]
________________
in accordance with the [insert defined name of Floating or
Adjustable Rate Provision] set forth below] [If the security
________________
is to bear interest at a rate determined with reference to
___________________________________________________________
an index, refer to description of index below] until the
________
principal hereof is paid or made available for payment [if
___
applicable, insert -- , and (to the extent that the payment
__________________
of such interest shall be legally enforceable) at the rate
of ....% per annum on any overdue principal and premium and
on any overdue instalment of interest]. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the ....... or ....... (whether or not a Business
Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
-18-
inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Securities are Floating or Adjustable Rate
____________________________
Securities with respect to which the principal of or any
_________________________________________________________
premium or interest may be determined with reference to an
___________________________________________________________
index, insert the text of the Floating or Adjustable Rate
_____
Provision.]
[If the Security is not to bear interest prior to
_________________________________________________
Maturity, insert -- The principal of this Security shall not
________________
bear interest except in the case of a default in payment of
principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of ....% per annum
(to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such
principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ......% per annum
(to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any)
and [if applicable, insert -- any such] interest on this
_____________________
Security will be made at the office or agency of the Company
maintained for that purpose in ............, in such coin or
currency [of the United States of America] [if the Security
________________
is denominated in a currency other than U.S. dollars,
____________________________________________________
specify other currency or currency unit in which payment of
the principal of and any premium or interest may be made] as
at the time of payment is legal tender for payment of public
and private debts [if applicable, insert -- ; provided,
_____________________ ________
however, that at the option of the Company payment of
_______
interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse
-19-
hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
[AETNA LIFE AND CASUALTY COMPANY]
[AETNA SERVICES, INC.]
By_____________________________
[Seal]
Attest:
...........................
Section 203. Form of Reverse of Security.
___________________________
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an
Indenture, dated as of July 1, 1996 (herein called the
"Indenture"), among the Company, as Issuer, Aetna Inc., as
Guarantor (herein called the "Guarantor") and
..................., as Trustee (herein called the
"Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the
Guarantor, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the
series designated on the face hereof[, limited in aggregate
principal amount to [$]...........].
[If applicable, insert -- The Securities of this
_____________________
series are subject to redemption upon not less than 30 days'
nor more than 60 days' notice by mail, [if applicable,
_______________
insert -- (1) on ........... in any year commencing with the
______
year ...... and ending with the year ...... through
operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and
(2)] at any time [on or after ................], as a whole
or in part, at the election of the Company, at the following
-20-
Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before ..............., ...%,
and if redeemed] during the 12-month period beginning
............. of the years indicated,
Redemption Redemption
Year Price Year Price
____ _____ ____ _____
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such
redemption [if applicable, insert -- (whether through
_____________________
operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this
_____________________
series are subject to redemption upon not less than 30 days'
nor more than 60 days' notice by mail, (1) on ............
in any year commencing with the year .... and ending with
the year .... through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and
(2) at any time [on or after ............], as a whole or in
part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of
the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during
the 12-month period beginning ............ of the years
indicated,
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Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
____ _________________ ______________________
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such
redemption (whether through operation of the sinking fund or
otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the
Indenture.]
[The sinking fund for this series provides for the
redemption on ............ in each year beginning with the
year ....... and ending with the year ...... of [not less
than] [$].......... [("mandatory sinking fund") and not more
than [$].........] aggregate principal amount of Securities
of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be
made [in the inverse order in which they become due].]
[If the Security is subject to redemption,
__________________________________________
insert -- In the event of redemption of this Security in
______
part only, a new Security or Securities of this series and
of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for defeasance
at any time of (1) the entire indebtedness of this Security
or (2) certain restrictive covenants and Events of Default
-22-
with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
[If the Security is not an Original Issue Discount
__________________________________________________
Security, insert -- If an Event of Default with respect to
________________
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided
in the Indenture.]
[If the Security is an Original Issue Discount
______________________________________________
Security, insert -- If an Event of Default with respect to
________________
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal
to -- insert formula for determining the amount. Upon
_________________________________________
payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of
the principal of and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the
Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time
by the Company, the Guarantor and the Trustee with the
consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of
the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to
waive compliance by the Company or the Guarantor or both,
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Security at the times, place and
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[rate-rates], and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this
Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at
the office or agency of the Company in any place where the
principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of
[$]....... and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or
not this Security is overdue, and neither the Company, the
Guarantor, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Indenture provides that the Company and the
Guarantor, at the Company's option, (a) will be discharged
from any and all obligations in respect of the Securities
(except for certain obligations to register the transfer or
exchange of Securities, replace stolen, lost or mutilated
Securities, maintain paying agencies and hold moneys for
payment in trust) or (b) need not comply with certain
restrictive covenants of the Indenture, in each case if the
Company or the Guarantor deposits, in trust, with the
Trustee money or U.S. Government Obligations (or Foreign
Government Obligations if the Securities are denominated in
-24-
a foreign currency or currencies) which through the payment
of interest thereon and principal thereof in accordance with
their terms will provide money, in an amount sufficient to
pay all the principal (including any mandatory sinking fund
payments) of, and (premium, if any) and interest on, the
Securities on the dates such payments are due in accordance
with the terms of such Securities and Guarantees, and
certain other conditions are satisfied.
No recourse shall be had for the payment of the
principal of (and premium, if any) or interest on this
Security, or for any claim based hereon, or otherwise in
respect hereof or of the Guarantee endorsed hereon, or based
on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of
the Company or of any successor corporation, or of the
Guarantor or of any successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived
and released.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in
the Indenture.
Section 204. Form of Legend for Global Securities.
____________________________________
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following
form or such other legends as may be required:
This Security is a Global Security within the
meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a
nominee thereof. This Security may not be
transferred to, or registered or exchanged for
Securities registered in the name of, any Person
other than the Depositary or a nominee thereof and
no such transfer may be registered, except in the
limited circumstances described in the Indenture.
Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or
in lieu of, this Security shall be a Global
Security subject to the foregoing, except in such
limited circumstances.
-25-
Section 205. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
.............................,
As Trustee
By...........................
Authorized Officer
Section 206. Form of Guarantee.
_________________
Guarantees to be endorsed on the Securities shall,
subject to Section 201, be in substantially the form set
forth below; words enclosed in brackets shall be inserted,
if applicable:
GUARANTEE
OF
AETNA INC.
Aetna Inc., a Connecticut corporation (herein
called the "Guarantor", which term includes any successor
corporation under the Indenture referred to in the Security
upon which this Guarantee is endorsed), for value received,
hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed the due and
punctual payment of the principal of, premium, if any, and
interest on said Security [and the due and punctual payment
of the sinking fund payments provided for herein], when and
as the same shall become due and payable, whether at the
Stated Maturity or upon declaration of acceleration, call
for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the
failure of [Aetna Life and Casualty Company] [Aetna
Services, Inc.], a Connecticut corporation (herein called
the "Company", which term includes any successor corporation
under such Indenture) punctually to make any such payment of
principal, premium or interest [or sinking fund payment],
the Guarantor hereby agrees to pay or to cause any such
payment to be made punctually when and as the same shall
become due and payable, whether at Stated Maturity or upon
declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company.
-26-
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely
surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, the validity,
legality or enforceability of said Security or the
Indenture, or the absence of any action to enforce the same,
or any waiver, modification, indulgence or consent granted
to the Company with respect thereto, by the Holder of said
Security or by the Trustee, the recovery of any judgment
against the Company or any action to enforce the same or any
other circumstance that might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor;
provided, however, that notwithstanding the foregoing, no
________ _______
such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of
said Security or the interest rate thereon or increase any
premium payable upon redemption thereof. The Guarantor
hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of bankruptcy of
the Company, any right of set-off or to counterclaim, any
right to require a proceeding first against the Company,
protest or notice with respect to said Security or the
indebtedness evidenced thereby [or with respect to any
sinking fund payment required under said Security] and all
demands whatsoever, and covenants that this Guarantee will
not be discharged except by payment in full of the principal
of, and premium, if any, and interest on said Security.
The Guarantor shall be subrogated to all rights of
the Holder against the Company in respect of any amounts
paid to such Holder by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the
________ _______
Guarantor shall not, without the consent of all Holders of
all outstanding Securities of this series issued under the
Indenture, be entitled to enforce, or to receive, any
payments arising out of or based upon such right of
subrogation until the principal of, premium, if any, and
interest then due and payable on all Securities of the same
series issued under the Indenture shall have been
irrevocably paid in full in accordance with the terms of
such Securities.
This Guarantee is a guarantee of payment when due
and not of collection. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, in respect
of said Security if at any time payment, or any part
thereof, of said Security is rescinded or must otherwise be
restored or returned by the Holder of said Security or any
trustee for said Holder upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company or
any other entity, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or
-27-
similar officer for, the Company or any other entity or any
substantial part of their respective property, or otherwise,
all as though such payments had not been made.
No reference herein to such Indenture and no
provision of this Guarantee or of such Indenture shall alter
or impair the guarantee of the Guarantor, which is absolute
and unconditional, of the due and punctual payment of the
principal of, and premium, if any, and interest on the
Security upon which this Guarantee is endorsed at the times,
place and rate, and in the cash or currency prescribed
herein.
This Guarantee shall be governed by and construed
in accordance with the laws of the State of New York, but
without regard to principles of conflicts of laws.
This Guarantee shall not be valid or become
obligatory for any purpose until the certificate of
authentication on said Security shall have been manually
signed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined
in such Indenture shall have the meanings assigned to them
in such Indenture.
IN WITNESS WHEREOF, Aetna Inc. has caused the
execution hereof in its corporate name by its duly
authorized officers.
AETNA INC.
By___________________
[Seal]
Attest:
_______________________________
[Assistant] Corporate Secretary
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
____________________________________
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to Board
Resolutions of the Company and the Guarantor, as
appropriate, and set forth in Officers' Certificates of the
Company and the Guarantor, as appropriate, or established in
one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the
series (which shall distinguish the
Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate
principal amount of the Securities of the
series which may be authenticated and
delivered under this Indenture (except for
Securities authenticated and delivered upon
registration of transfer of, or in exchange
for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306,
906 or 1107 and except for any Securities
which, pursuant to Section 303, are deemed
never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on
a Security of the series shall be payable, if
other than the Person in whose name that
Security (or one or more Predecessor
Securities) is registered at the close of
business on the Regular Record Date for such
interest;
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest,
if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall
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be determined, the date or dates from which
such interest shall accrue, the Interest
Payment Dates on which any such interest
shall be payable and the Regular Record Date
for any interest payable on any Interest
Payment Date;
(6) whether the Securities of the
series would be secured pursuant to
Section 901(6);
(7) the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
(8) if applicable, the period or
periods within which, the price or prices at
which (including premium, if any) and the
terms and conditions upon which Securities of
the series may or are required to be redeemed
or prepaid, in whole or in part, at the
option of the Company or the Guarantor
pursuant to a sinking fund or otherwise;
(9) the obligation, if any, of the
Company to redeem or purchase Securities of
the series pursuant to any sinking fund or
analogous provisions or at the option of a
Holder thereof and the period or periods
within which, the price or prices at which
and the terms and conditions upon which
Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to
such obligation;
(10) if other than denominations of
$1,000 and any integral multiple thereof, the
denominations in which Securities of the
series shall be issuable;
(11) if other than such coin or
currency of the United States of America as
at the time is legal tender for payment of
public or private debts, the currency or
currencies, including composite currencies,
or currency units in which payment of the
principal of and any premium and interest on
any Securities of the series shall be payable
and the manner of determining the equivalent
thereof in the currency of the United States
of America for purposes of the definition of
"Outstanding" in Section 101;
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(12) if the amount of payments of
principal of or any premium or interest on
any Securities of the series may be
determined with reference to one or more
indices, the manner in which such amounts
shall be determined;
(13) if the principal of or any premium
or interest on any Securities of the series
is to be payable, at the election of the
Company or a Holder thereof, in one or more
currencies, including composite currencies,
or currency units other than that or those in
which the Securities are stated to be
payable, the currency, currencies, including
composite currencies, or currency units in
which payment of the principal of and any
premium and interest on Securities of such
series as to which such election is made
shall be payable, and the periods within
which and the terms and conditions upon which
such election is to be made;
(14) if other than the principal amount
thereof, the portion of the principal amount
of Securities of the series which shall be
payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502
or provable under any applicable federal or
state bankruptcy or similar law pursuant to
Section 503;
(15) if applicable, that the Securities
of the series shall be issuable in whole or
in part in the form of one or more Global
Securities and, in such case, the Depositary
or Depositaries for such Global Security or
Global Securities and any circumstance other
than those set forth in Section 305 in which
any such Global Security may be transferred
to, and registered and exchanged for
Securities registered in the name of, a
Person other than the Depositary for such
Global Security or a nominee thereof and in
which any such transfer may be registered;
(16) any other event or events of
default applicable with respect to the
Securities of the series in addition to those
provided in Section 501(1) through (7);
-31-
(17) any other covenant or warranty
included for the benefit of Securities of the
series in addition to (and not inconsistent
with) those included in this Indenture for
the benefit of Securities of all series, or
any other covenant or warranty included for
the benefit of Securities of the series in
lieu of any covenant or warranty included in
this Indenture for the benefit of Securities
of all series, or any provision that any
covenant or warranty included in this
Indenture for the benefit of Securities of
all series shall not be for the benefit of
Securities of the series, or any combination
of such covenants, warranties or provisions;
(18) if other than as set forth in
Section 206, the Guarantee of the Securities
of such series pursuant to Article Fourteen
hereof;
(19) any restriction or condition
on the transferability of the Securities
of the series;
(20) any authenticating or paying
agents, registrars or any other agents
with respect to the Securities of the
series; and
(21) any other terms of the series
(which terms shall not be inconsistent with
the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be
substantially identical except as to denomination and number
and except as may otherwise be provided in or pursuant to
the Board Resolutions referred to above and set forth in
such Officers' Certificate or in any such indenture
supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the
Company or the Guarantor, a copy of such action shall be
delivered to the Trustee.
Section 302. Denominations.
_____________
The Securities of each series shall be issuable in
registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the
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absence of any such provisions with respect to the
Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
_______________________________________
Dating.
______
The Securities shall be executed on behalf of the
Company by its Chairman, its President, a Vice Chairman, any
Vice President, its Treasurer or Assistant Treasurer, under
its corporate seal reproduced thereon attested by its
Corporate Secretary or one of its Assistant Corporate
Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
The Guarantees shall be executed on behalf of the
Guarantor by its Chairman, its President, a Vice Chairman,
any Vice President, its Treasurer or Assistant Treasurer,
under its corporate seal reproduced thereon and attested by
its Corporate Secretary or one of its Assistant Corporate
Secretaries. The signature of any of these officers on the
Guarantees may be manual or facsimile.
The seal of the Company or the Guarantor, as the
case may be, may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Securities bearing the manual or
facsimile signatures of individuals who were at any time the
proper officers of the Company or of the Guarantor shall
bind the Company or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at
the date of such Securities. Minor typographical and other
minor errors in the text of any Security or the Guarantee
endorsed thereon or minor defects in the seal or facsimile
signature on any Security or the Guarantee endorsed thereon
shall not affect the validity or enforceability of such
Security or such Guaranty if such Security has been duly
authenticated and delivered by the Trustee.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company and
having endorsed thereon Guarantees executed by the Guarantor
to the Trustee for authentication, together with a Company
Order of the Company for the authentication and delivery of
such Securities, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Securities
having such Guarantees endorsed thereon. If the form or
terms of the Securities of the series or the form of
-33-
Guarantees endorsed thereon have been established in or
pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this
Indenture in relation to such Securities and Guarantees
endorsed thereon, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such
Securities and the applicable Guarantees have
been established by or pursuant to Board
Resolution as permitted by Section 201, that
such form or forms have been established in
conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and
the applicable Guarantees have been
established by or pursuant to Board
Resolution as permitted by Section 301, that
such terms have been established in
conformity with the provisions of this
Indenture;
(c) that such Securities, when
authenticated and delivered by the Trustee
and issued by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will constitute valid and
legally binding obligations of the Company
enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and
similar laws of general applicability
relating to or affecting creditors' rights
generally or the rights of creditors of
insurance companies generally and to general
equity principles; and
(d) that such Guarantees, when the
Securities on which such Guarantees are
endorsed are authenticated and delivered by
the Trustee and issued by the Company in the
manner and subject to any conditions
specified in such Opinion of Counsel, will
constitute valid and legally binding
obligations of the Guarantor, enforceable in
accordance with their terms, subject to
bankruptcy, insolvency, reorganization and
other laws of general applicability relating
-34-
to or affecting the enforcement of creditors'
rights and to general equity principles.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section
if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken or if the Trustee in
good faith by its board of directors, executive committee,
or a trust committee of directors or responsible officers of
the Trustee shall determine that such action would expose
the Trustee to personal liability to existing Holders of
Securities.
Notwithstanding the provisions of Section 301 and
of the preceding paragraph, if all Securities of a series
are not to be originally issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of
authentication of each Security of such series if such
documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series
to be issued.
Each Security and the applicable Guarantee shall
be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be
entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by
manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered
hereunder and that such Security or Guarantee is entitled to
the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security and the Guarantee
endorsed thereon shall be deemed never to have been
authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
____________________
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary
-35-
Securities substantially of the tenor of the definitive
Securities in lieu of which they are issued and having
endorsed thereon Guarantees of the Guarantor substantially
of the tenor of definitive Guarantees, which Securities and
Guarantees may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination and with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities or such Guarantees may
determine, as evidenced by their execution of such
Securities and such Guarantees.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and
tenor which have endorsed thereon Guarantees duly executed
by the Guarantor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 305. Registration, Registration of
_____________________________
Transfer and Exchange.
_____________________
The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations
as it or the Trustee may prescribe, the Company shall
provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
-36-
Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and
tenor which have endorsed thereon a Guarantee duly executed
by the Guarantor.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like
aggregate principal amount and tenor, each such Security
having endorsed thereon a Guarantee duly executed by the
Guarantor upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantor, evidencing the
same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer, exchange, redemption or payment
shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Securities, but the
Company or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any
transfer.
Unless otherwise required by the rules of any
stock exchange on which the Securities are listed or of any
quotation system through which the Securities are traded,
neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of
any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice
of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of
business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for
-37-
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Notwithstanding any other provision in this
Indenture, no Global Security may be transferred to, or
registered or exchanged for Securities registered in the
name of, any Person other than the Depositary for such
Global Security or any nominee thereof, and no such transfer
may be registered, unless (1) such Depositary (A) notifies
the Company and the Trustee that it is unwilling or unable
to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such
transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect
to the Securities evidenced by such Global Security or (4)
there shall exist such other circumstances, if any, as have
been specified for this purpose as contemplated by Section
301. Notwithstanding any other provision in this Indenture,
a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be
transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such
Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such
a transfer may be registered.
Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security to which the restriction set forth in
the first sentence of the preceding paragraph shall apply,
whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen
______________________________________
Securities.
__________
If there shall be delivered to the Company and the
Trustee (i) a mutilated Security, or (ii) evidence to their
satisfaction of the destruction, loss or theft of any
Security and in either case such security or indemnity as
may be required by either of them to save each of them and
any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series and of
like tenor and principal amount having endorsed thereon a
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Guarantee duly executed by the Guarantor, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company or the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual
obligation of the Company and the Guarantor, whether or not
the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights
____________________________________
Preserved.
_________
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
Clause (1) or (2) below:
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(1) The Company may elect to make
payment of any Defaulted Interest to the
Persons in whose names the Securities of such
series (or their respective Predecessor
Securities) are registered at the close of
business on a Special Record Date for the
payment of such Defaulted Interest, which
shall be fixed in the following manner. The
Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed
to be paid on each Security of such series
and the date of the proposed payment, and at
the same time the Company shall deposit with
the Trustee an amount of money equal to the
aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee
for such deposit prior to the date of the
proposed payment, such money when deposited
to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which
shall be not more than 15 days and not less
than 10 days prior to the date of the
proposed payment and not less than 15 days
after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such
Special Record Date and, in the name and at
the expense of the Company, shall cause
notice of the proposed payment of such
Defaulted Interest and the Special Record
Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities
of such series at its address as it appears
in the Security Register, not less than
10 days prior to such Special Record Date.
Notice of the proposed payment of such
Defaulted Interest and the Special Record
Date therefor having been so mailed, such
Defaulted Interest shall be paid to the
Persons in whose names the Securities of such
series (or their respective Predecessor
Securities) are registered at the close of
business on such Special Record Date and
shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any
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series in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which such Securities
may be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this Clause,
such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this
Section, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 308. Persons Deemed Owners.
_____________________
Prior to due presentment of a Security for
registration of transfer, the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and
for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Guarantor,
the Trustee nor any agent of the Company, the Guarantor or
the Trustee shall be affected by 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 Company,
the Guarantor, the Trustee, and any agent of the Company,
the Guarantor 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 Security.
Section 309. Cancellation.
____________
All Securities surrendered for payment,
redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by
it. The Company or the Guarantor may at any time deliver to
the Trustee for cancellation any Securities previously
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authenticated and delivered hereunder which the Company or
the Guarantor may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company
Order. Acquisition by the Company or the Guarantor of any
Security shall not operate as a redemption or satisfaction
of the indebtedness represented by such Security unless and
until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest.
_______________________
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period
shorter than a full monthly period, shall be computed on the
basis of the actual number of days elapsed in such period.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
_____________________________
Indenture.
_________
This Indenture shall upon Company Request cease to
be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities of a
series herein expressly provided for) with respect to
Securities of any series and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to
a series, when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered
(other than (i) Securities which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306
and (ii) Securities of such series for whose
payment money has theretofore been deposited
in trust or segregated and held in trust by
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the Company or the Guarantor and thereafter
repaid to the Company or the Guarantor or
discharged from such trust, as provided in
Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities of such series
not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
or
(ii) will become due and payable at
their Stated Maturity within one year,
or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the Trustee
for the giving of notice of redemption
by the Trustee in the name, and at the
expense, of the Company,
and the Company or the Guarantor, in the case
of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee in
trust for the purpose (A) money (either in
United States dollars or such other currency
or currency unit in which the Securities of
any series may be payable) in an amount, or
(B) U.S. Government Obligations (or Foreign
Government Obligations if the Securities are
denominated in a foreign currency or
currencies) that through the scheduled
payment of principal and interest in respect
thereof in accordance with their terms will
provide, not later than one day before the
due date of any payment, money in an amount,
or (C) a combination thereof, sufficient to
pay and discharge the entire indebtedness on
such Securities of such series not
theretofore delivered to the Trustee for
cancellation, for principal of (and premium,
if any) and interest to the date of such
deposit (in the case of Securities of such
series which have become due and payable) or
to the Stated Maturity or Redemption Date, as
the case may be;
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(2) the Company or the Guarantor has
paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent herein provided for
relating to the satisfaction and discharge of
this Indenture with respect to such series
have been complied with.
In the event there are Securities of two or more
series outstanding hereunder, the Trustee shall be required
to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with
respect to Securities of a particular series as to which it
is Trustee and if the other conditions thereto are met. In
the event that there are two or more Trustees hereunder,
then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all
Trustees hereunder.
Notwithstanding the satisfaction and discharge of
this Indenture with respect to a particular series, the
obligations of the Company and the Guarantor to the Trustee
under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive until there are no Securities
Outstanding with respect to a particular series and the
obligations of the Company, the Guarantor and the Trustee
with respect to all other series of Securities shall
survive.
Section 402. Application of Trust Fund.
_________________________
Subject to provisions of the last paragraph of
Section 1003, all amounts deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied
by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or the
Guarantor acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal
and any premium and interest for whose payment such funds
have been deposited with the Trustee.
-44-
ARTICLE FIVE
Remedies
Section 501. Events of Default.
_________________
"Event of Default" whenever used with respect to
Securities of a series means any one of the following events
and such other events as may be established with respect to
the Securities of such series as contemplated by Section 301
hereof:
(1) Default in the payment of any instalment
of interest upon any of the Securities of such
series as and when the same shall become due and
payable, and continuance of such default for a
period of 30 days; or
(2) Default in the payment of the principal
of or premium, if any, on any of the Securities of
such series as and when the same shall become due
and payable either at maturity, upon redemption,
by declaration or otherwise; or
(3) Default in the making of any sinking
fund payment, whether mandatory or optional, as
and when the same shall become due and payable by
the terms of the Securities of such series; or
(4) Failure on the part of the Company or
the Guarantor duly to observe or perform in any
material respect any other of the covenants or
agreements on the part of the Company or the
Guarantor contained in this Indenture (other than
those set forth exclusively in the terms of any
other particular series of Securities established
as contemplated by this Indenture for the benefit
of such other series) and written notice of such
failure, stating that such notice is a "Notice of
Default" hereunder, and requiring the Company or
the Guarantor, as the case may be, to remedy the
same, shall have been given by registered or
certified mail, return receipt requested, to the
Company and the Guarantor by the Trustee, or to
the Company, the Guarantor and the Trustee by the
holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that
series, and such failure shall have continued
unremedied for a period of 90 days after the date
of the Company's and the Guarantor's receipt of
such Notice of Default; or
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(5) An event of default, as defined in any
indenture or instrument evidencing or under which
the Company, the Guarantor or any Principal
Subsidiary shall have outstanding indebtedness for
borrowed money in a principal amount in excess of
$50,000,000, shall happen and be continuing and
such indebtedness shall have been accelerated so
that the same shall be or become due and payable
prior to the date on which the same would
otherwise have become due and payable (other than
acceleration of Non-Recourse Debt which does not
exceed in the aggregate 4% of the Guarantor's
total shareholders' equity, as set forth in the
most recently published audited consolidated
balance sheet of the Guarantor) or the Company,
the Guarantor or any Principal Subsidiary shall
default in the payment at final maturity of
outstanding indebtedness for borrowed money in a
principal amount in excess of $50,000,000 (other
than default in payment at final maturity of
Non-Recourse Debt which does not exceed in the
aggregate 4% of the Guarantor's total
shareholders' equity as set forth in the most
recently published audited consolidated balance
sheet of the Guarantor), and such acceleration or
default at maturity shall not be waived, rescinded
or annulled within 30 days after written notice
thereof, stating that such notice is a "Notice of
Default" hereunder, shall have been given to the
Company and the Guarantor by the Trustee (if such
event be known to it), or to the Company, the
Guarantor and the Trustee by the holders of at
least 25% in aggregate principal amount of the
Outstanding Securities of that series; provided,
__________
however, that if such acceleration under such
_______
indenture or instrument or default at maturity
shall be remedied or cured by the Company, the
Guarantor or Principal Subsidiary, or waived,
rescinded or annulled by the requisite holders of
such indebtedness, then 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 any of the Holders; and
___
provided further, that, subject to the provisions
________ _______
of Sections 601 and 602, 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 Company or the Guarantor, as
the case may be, by the holder of any such
indebtedness or an agent of the holder of any such
indebtedness, by the trustee then acting under any
-46-
such indenture or other instrument under which
such default shall have occurred, or by the
holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that
series; or
(6) A decree or order by a court having
jurisdiction in the premises shall have been
entered adjudging the Company or the Guarantor a
bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization,
arrangement, adjustment or composition of the
Company or the Guarantor under any applicable
Federal or State bankruptcy or similar law, and
such decree or order shall have continued
undischarged and unstayed for a period of 90 days;
or a decree or order of a court having
jurisdiction in the premises for the appointment
of a receiver, liquidator, trustee, assignee,
sequestrator or similar official in bankruptcy or
insolvency of the Company or the Guarantor or of
all or substantially all of the Company's or the
Guarantor's property, or for the winding up or
liquidation of the Company's or the Guarantor's
affairs, shall have been entered, and such decree
or order shall have continued undischarged and
unstayed for a period of 90 days; or
(7) The Company or the Guarantor shall
institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking
reorganization, arrangement, adjustment or
composition under any applicable Federal or State
bankruptcy or similar law, or shall consent to the
filing of any such petition, or shall consent to
the appointment of a receiver, liquidator,
trustee, assignee, sequestrator or similar
official in bankruptcy or insolvency of the
Company or the Guarantor or of all or
substantially all of the Company's or the
Guarantor's property, or shall make an assignment
for the benefit of creditors, or either the
Company or the Guarantor shall admit in writing
its inability to pay its debts generally as they
become due and its willingness to be adjudged a
bankrupt, or corporate action shall be taken by
the Company or the Guarantor in furtherance of any
of the aforesaid purposes.
-47-
Upon receipt by the Trustee of any Notice of
Default pursuant to this Section 501 with respect to
Securities of any series, a record date shall automatically
and without any other action by any Person be set for the
purpose of determining the holders of Outstanding Securities
of such series entitled to join in such Notice of Default,
which record date shall be the close of business on the day
the Trustee receives such Notice of Default. The Holders of
Outstanding Securities of such series on such record date
(or their duly appointed agents), 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 such Notice of Default shall have
________
become effective by virtue of Holders of at least 25% in
principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record
date, such Notice of Default shall automatically and without
any action by any Person be cancelled and of no further
effect. Nothing in this paragraph shall prevent a Holder
(or a duly appointed agent thereof) from giving, before or
after the expiration of such 90-day period, a Notice of
Default contrary to or different from, or, after the
expiration of such period, identical to, a Notice of Default
that has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
Section 502. Acceleration of Maturity; Rescission
____________________________________
and Annulment.
_____________
If an Event of Default with respect to Securities
of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of
that series to be due and payable immediately, by a notice
in writing to the Company and the Guarantor (and to the
Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) and all accrued
interest thereon shall become immediately due and payable.
At any time after such a declaration of
acceleration with respect to Securities of any series has
been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that
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series, by written notice to the Company, the Guarantor and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has
paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium,
if any, on) any Securities of that
series which have become due otherwise
than by such declaration of acceleration
and any interest thereon at the rate or
rates prescribed therefor in such
Securities,
(C) to the extent that payment of
such interest is lawful, interest upon
overdue interest at the rate or rates
prescribed therefor in such Securities,
and
(D) all sums paid or advanced by
the Trustee hereunder and the reasonable
compensation, expenses, disbursements
and advances of the Trustee, its agents
and counsel except such costs and
expenses as are a result of negligence
or bad faith on the part of the Trustee;
and
(2) all Events of Default with respect
to Securities of that series, other than the
non-payment of the principal of and interest,
if any, on the Securities of that series
which have become due solely by such
declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of
acceleration, or any rescission and annulment of any such
declaration, pursuant to this Section 502 with respect to
Securities of any series, a record date shall automatically
and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Securities
-49-
of such series entitled to join in such declaration, or
rescission and annulment, as the case may be, which record
date shall be the close of business on the day the Trustee
receives such declaration, or rescission and annulment, as
the case may be. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in
such declaration, or rescission and annulment, as the case
may be, whether or not such Holders remain Holders after
such record date; provided that, unless such declaration, or
________
rescission and annulment, as the case may be, shall have
become effective by virtue of Holders of at least 25%, in
the case of any declaration of acceleration, or a majority,
in the case of any rescission or annulment, in principal
amount of Outstanding Securities of such series on such
record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date,
such declaration, or rescission and annulment, as the case
may be, shall automatically and without any action by any
Person be cancelled and of no further effect. Nothing in
this paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration
of such 90-day period, a declaration of acceleration, or a
rescission and annulment of any such declaration, contrary
to or different from, or, after the expiration of such
period, identical to, a declaration, or rescission and
annulment, as the case may be, that has been cancelled
pursuant to the proviso to the preceding sentence, in which
event a new record date in respect thereof shall be set
pursuant to this paragraph.
Section 503. Collection of Indebtedness and Suits
____________________________________
for Enforcement by Trustee.
___________________________
The Company covenants that if
(1) default is made in the payment of
any interest on any Security when such
interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of
the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent
that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any
-50-
overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel except such costs and
expenses, as are a result of negligence or bad faith on the
part of the Trustee. Until such demand is made by the
Trustee, the Company may pay the principal of and premium,
if any, and interest, if any, on the Securities of any
series to the Holders thereof, whether or not the Securities
of such series are overdue.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid,
may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company, the Guarantor
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, the
Guarantor or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
________________________________
In case of any judicial proceeding relative to the
Company, the Guarantor or any other obligor upon the
Securities or the property of the Company, the Guarantor or
such other obligor or their creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized
(i) to file and prove a claim for the whole
amount of principal (and premium, if any) and interest
owing and unpaid in respect of the Securities in
accordance with the terms thereof and to file such
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
-51-
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607 except such
costs and expenses, as are a result of negligence or bad
faith on the part of the Trustee.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the
________ _______
Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without
__________________________________
Possession of Securities.
________________________
All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced
by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel except such costs and expenses, as are a
result of negligence or bad faith on the part of the
Trustee, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been
recovered.
-52-
Section 506. Application of Money Collected.
______________________________
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee under Section 607;
SECOND: To the payment of the amounts
then due and unpaid for principal of and any
premium and interest on the Securities in
respect of which or for the benefit of which
such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on
such Securities for principal and any premium
and interest, respectively; and
THIRD: To the payment of the
remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
___________________
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given
written notice to the Trustee of a continuing
Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding
Securities of that series shall have made
written request to the Trustee to institute
proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered
to the Trustee indemnity reasonably
satisfactory in form and substance to the
Trustee against the costs, expenses and
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liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all
of such Holders.
Section 508. Unconditional Right of Holders to Receive
__________________________________________
Principal, Premium and Interest.
_______________________________
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of
the principal of and any premium and (subject to
Section 307) any interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of
such Holder.
Section 509. Restoration of Rights and Remedies.
__________________________________
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the
Company, the Guarantor, the Trustee and the Holders shall be
restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
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Section 510. Rights and Remedies Cumulative.
______________________________
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
____________________________
No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Subject to Section 507,
every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
__________________
The Holders of a majority in principal amount of
the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
________
(1) such direction shall not be in
conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other
action deemed proper by the Trustee which is
not inconsistent with such direction.
Upon receipt by the Trustee of any such direction
with respect to Securities of any series, a record date
shall be set for determining the Holders of Outstanding
Securities of such series entitled to join in such
direction, which record date shall be the close of business
on the day the Trustee receives such direction. The Holders
of Outstanding Securities of such series on such record date
(or their duly appointed agents), and only such Persons,
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shall be entitled to join in such direction, whether or not
such Holders remain Holders after such record date; provided
________
that, unless such direction shall have become effective by
virtue of Holders of at least a majority in principal amount
of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such direction
shall automatically and without any action by any Person be
cancelled and of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such
90-day period, a direction contrary to or different from,
or, after the expiration of such period, identical to, a
direction that has been cancelled pursuant to the proviso to
the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
_______________________
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of
or any premium or interest on any Security of
such series, or
(2) in respect of a covenant or
provision hereof which under Article Nine
cannot be modified or amended without the
consent of the Holder of each Outstanding
Security of such series affected.
With respect to any series of Securities, the
Company or the Guarantor may, but shall not be obligated to,
establish a record date for the purpose of determining the
Persons entitled to waive any past default hereunder. If a
record date is fixed, the Holders on such record date, or
their duly designated proxies, and only such Persons, shall
be entitled to waive any default hereunder, whether or not
such Holders remain Holders after such record date;
provided, however, that unless such Holders of not less than
a majority in principal amount of the Outstanding Securities
of such series shall have waived such default prior to the
date which is 90 days after such record date, any such
waiver previously given shall automatically and without
further action by any Holder be cancelled and of no effect.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
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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 514. Undertaking for Costs.
_____________________
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in
any suit instituted by the Company or the Guarantor.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
___________________________________
The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, 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. Whether or not therein
expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
__________________
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders
of Securities of such series notice of such default as and
to the extent provided by the Trust Indenture Act; provided,
________
however, that in the case of any default of the character
_______
specified in Section 501(4) with respect to Securities of
such series, no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would
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become, an Event of Default with respect to Securities of
such series.
Section 603. Certain Rights of Trustee.
_________________________
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be
protected in acting or refraining from
acting upon any resolution, certificate,
statement, instrument, opinion, report,
notice, request, direction, consent, order,
bond, debenture, note, other evidence of
indebtedness or other paper or document
believed by it to be genuine and to have
been signed or presented by the proper party
or parties;
(b) any request or direction of the
Company or the Guarantor mentioned herein
shall be sufficiently evidenced by a Company
Request or Company Order and any resolution
of the Board of Directors of the Company or
the Guarantor may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of
this Indenture the Trustee shall deem it
desirable that a matter be proved or
established prior to taking, suffering or
omitting any action hereunder, the Trustee
(unless other evidence be herein
specifically prescribed) may, in the absence
of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with
counsel and the written advice of such
counsel or any Opinion of Counsel shall be
full and complete authorization and
protection in respect of any action taken,
suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Indenture at the
request or direction of any of the Holders
pursuant to this Indenture, unless such
Holders shall have offered to the Trustee
security or indemnity reasonably
satisfactory in form and substance to the
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Trustee against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an
Event of Default and after the remedy or
waiver of all Events of Default, the Trustee
shall not be bound to make any investigation
into the facts or matters stated in any
resolution, certificate, statement,
instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of
indebtedness or other paper or document, but
the Trustee, in its discretion, may make
such further inquiry or investigation into
such facts or matters as it may see fit,
and, if the Trustee shall determine to make
such further inquiry or investigation, it
shall upon reasonable notice to the Company
and the Guarantor be entitled to examine the
books, records and premises of the Company
and the Guarantor, personally or by agent or
attorney at a time and place acceptable to
the Company or the Guarantor, as the case
may be; and
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents or attorneys and the Trustee
shall not be responsible for any misconduct
or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or
_______________________________
Issuance of Securities.
______________________
The recitals contained herein and in the
Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the
Company or the Guarantor, as the case may be, and the
Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities or of the Guarantees. The
Trustee or any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or
the proceeds thereof.
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Section 605. May Hold Securities.
___________________
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Company or the Guarantor, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the
Company or the Guarantor with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
___________________
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the
case may be.
Section 607. Compensation and Reimbursement.
______________________________
The Company and the Guarantor agree
(1) to pay to the Trustee from time to
time reasonable compensation for all services
rendered by it hereunder (which compensation
shall not be limited by any provision of law
in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly
provided herein, to reimburse the Trustee
upon its written request for all reasonable
expenses, disbursements and advances incurred
or made by the Trustee in accordance with any
provision of this Indenture (including the
reasonable compensation, and reasonable
expenses and disbursements of its agents and
outside counsel), except any such expense,
disbursement or advance as may be
attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and
to hold it harmless against, any loss,
liability or expense incurred without
negligence or bad faith on its part, arising
out of or in connection with the acceptance
or administration of the trust or trusts
hereunder, including the reasonable costs and
expenses of defending itself against any
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claim or liability in connection with the
exercise or performance of any of its powers
or duties hereunder.
Section 608. Disqualification; Conflicting
_____________________________
Interests.
_________
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required;
__________________________
Eligibility.
___________
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 or is a
subsidiary of a corporation which shall be a Person that has
a combined capital and surplus of at least $50,000,000 and
which unconditionally guarantees the obligations of the
Trustee hereunder. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal;
_______________________
Appointment of Successor.
________________________
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company and the Guarantor. If
the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
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competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to
the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply
with Section 608 after written request
therefor by the Company or the Guarantor or
by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 609 and shall fail to
resign after written request therefor by the
Company or the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable
of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of
its property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who
has been a bona fide Holder of a Security for at least six
months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable
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requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
Guarantor and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect to
the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include
the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by
____________________________
Successor.
_________
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, to the Guarantor and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee
hereunder.
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(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the Guarantor, the
retiring Trustee and each successor Trustee with respect to
the Securities of such series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to
transfer the rights, powers, trust and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on
request of the Company and the Guarantor or any successor
Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company and the Guarantor shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers
and trusts referred to in paragraphs (a) and (b) of this
Section, as the case may be.
(d) No successor shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
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Section 612. Merger, Conversion, Consolidation or
____________________________________
Succession to Business.
______________________
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
Section 613. Preferential Collection of Claims
__________________________________
Against Company or Guarantor.
____________________________
If and when the Trustee shall be or become a
creditor of the Company, the Guarantor or any other obligor
upon the Securities, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the
collection of claims against the Company, the Guarantor or
any such other obligor.
Section 614. Appointment of Authenticating Agent.
___________________________________
The Trustee may with the consent of the Company
appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized
and doing business under the laws of the United States of
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America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee or the Company may at any time
terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to
the Company or the Trustee, as the case may be. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to
the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which
such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
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The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of
such series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
........................,
As Trustee
By.......................,
As Authenticating Agent
By........................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 701. Company and Guarantor to Furnish Trustee
________________________________________
Names and Addresses of Holders.
______________________________
The Company and the Guarantor will furnish or cause to
be furnished to the Trustee
(a) semi-annually, not later than 10 days
after each Regular Record Date in each year, a
list for each series of Securities, in such form
as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities
of such series as of the preceding Regular Record
Date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the
receipt by the Company or the Guarantor of any
such request, a list of similar form and content
as of a date not more than 15 days prior to the
time such list is furnished;
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excluding from any such list names and addresses received by
_________
the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information;
___________________________
Communications to Holders.
_________________________
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished to
the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with
other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company, the Guarantor and
the Trustee that none of the Company, the Guarantor, the
Trustee or any agent of any of them shall be held
accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
__________________
(a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant
thereto. To the extent that any such report is required by
the Trust Indenture Act with respect to any 12 month period,
such report shall cover the 12 month period ending July 15
and shall be transmitted by the next succeeding September
15.
(b) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee
with each stock exchange upon which any Securities are
listed, with the Commission and with the Company and the
Guarantor. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 704. Reports by Company and Guarantor.
________________________________
The Company and the Guarantor shall file with the
Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries
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thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or
________
reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is so required to
be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company or Guarantor May Consolidate, Etc.,
___________________________________________
Only on Certain Terms.
_____________________
Neither the Company nor the Guarantor shall
consolidate with or merge into any other Person or sell its
properties and assets as, or substantially as, an entirety
to any Person, and neither the Company nor the Guarantor
shall permit any Person to consolidate with or merge into
the Company or the Guarantor, as the case may be, unless:
(1) in case the Company or the
Guarantor, as the case may be, shall
consolidate with or merge into another Person
(including, without limitation, the Guarantor
or the Company, as the case may be), or sell
its properties and assets as, or
substantially as, an entirety to any Person
(including, without limitation, the Guarantor
or the Company, as the case may be), the
Person formed by such consolidation or into
which the Company or the Guarantor, as the
case may be, is merged or the Person which
purchases the properties and assets of the
Company or the Guarantor, as the case may be,
as, or substantially, as an entirety shall be
a corporation, partnership or trust, shall be
organized and validly existing under the laws
of the United States of America, any State
thereof or the District of Columbia and shall
expressly assume, by an indenture
supplemental hereto, in the case of any such
transaction involving the Company, the due
and punctual payment of the principal of and
any premium and interest on all the
Securities and the performance or observance
of every covenant of this Indenture on the
part of the Company to be performed or
observed, and, in the case of any such
transaction involving the Guarantor, the due
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and punctual performance of the Guarantees
and the performance or observance of every
covenant of this Indenture on the part of the
Guarantor to be performed or observed, in
each case by supplemental indenture
satisfactory in form to the Trustee, executed
and delivered to the Trustee, by the Person
(if other than the Company or the Guarantor,
as the case may be) formed by such
consolidation or into which the Company or
the Guarantor, as the case may be, shall have
been merged or by the corporation which shall
have acquired the assets of the Company or
the Guarantor, as the case may be;
(2) immediately after giving effect to
such transaction, no Event of Default shall
have happened and be continuing; and
(3) the Company or the Guarantor, as
the case may be, has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that such
consolidation, merger, or sale and, if a
supplemental indenture is required in
connection with such transaction, such
supplemental indenture comply with this
Article and that all conditions precedent
herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
______________________
Upon any consolidation of the Company or the
Guarantor, as the case may be, with, or merger of the
Company or the Guarantor, as the case may be, into, any
other Person or any sale of the properties and assets of the
Company or the Guarantor, as the case may be, as, or
substantially as, an entirety in accordance with Section
801, the successor Person formed by such consolidation or
into which the Company or the Guarantor, as the case may be,
is merged or to which such sale is made shall succeed to,
and be substituted for, and may exercise every right and
power of, the Company or the Guarantor, as the case may be,
under this Indenture with the same effect as if such
successor Person had been named as the Company or the
Guarantor, as the case may be, herein, and thereafter the
predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities or the
Guarantees, as the case may be.
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Section 803. Assumption by Guarantor or Subsidiary of
________________________________________
Company's Obligations
_____________________
The Guarantor or any Subsidiary of the Guarantor
may, where permitted by law, assume the obligations of the
Company (or any Person which shall have previously assumed
the obligations of the Company) for the due and punctual
payment of the principal of (and any premium), interest on
and any other payments with respect to the Securities and
the performance of every covenant of this Indenture and the
Securities on the part of the Company (or such other Person)
to be performed or observed, provided that:
(1) the Guarantor or such Subsidiary, as the case
may be, shall expressly assume such obligations by an
indenture supplemental hereto, in form reasonably
satisfactory to the Trustee, executed and delivered to
the Trustee and if such Subsidiary assumed such
obligations, the Guarantor shall, by such supplemental
indenture, confirm that its Guarantees shall apply to
such Subsidiary's obligations under the Securities and
this Indenture, as modified by such supplemental
indenture;
(2) immediately after giving effect to such
transaction, no Event of Default shall have occurred
and be continuing;
(3) the Guarantor or such Subsidiary, as the case
may be, shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such assumption and such supplemental
indenture comply with this Article and that all
conditions precedent herein provided for relating to
such transaction have been complied with;
(4) such assumption shall not result in adverse
tax consequences to any Holder; and
(5) the Guarantor and/or such Subsidiary shall
have delivered to the Trustee an Opinion of Counsel to the
effect that (1) the Securities are legal, valid and binding
obligations of the assuming corporation enforceable against
the assuming corporation in accordance with their terms
subject to (a) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors
rights generally and the rights of creditors of insurance
companies generally and (b) general principles of equity
(regardless of whether considered in a proceeding at law or
in equity) and (2) if a Subsidiary of the Guarantor is the
assuming corporation, the Guarantees continue to be the
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legal, valid and binding obligations of the Guarantor
enforceable against the Guarantor in accordance with their
terms subject to (a) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors
rights generally and the rights of creditors of insurance
companies generally and (b) general principles of equity
(regardless of whether considered in a proceeding at law or
in equity).
Upon any such assumption, the Guarantor or such
Subsidiary shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if the Guarantor or such
Subsidiary, as the case may be, had been named as the
"Company" in herein, and the Person named as the "Company" in
the first paragraph of this instrument or any successor
Person which shall theretofore have become such in the
manner prescribed in this Article shall be released from its
liability as obligor upon the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
_______________________________
Consent of Holders.
__________________
Without the consent of any Holders, the Company
and the Guarantor, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of
another Person to the Company or the
Guarantor and the assumption by any such
successor of the covenants of the Company or
the Guarantor herein and in the Securities or
Guarantees; or
(2) to add to the covenants of the
Company or the Guarantor for the benefit of
the Holders of all or any series of
Securities (and if such covenants are to be
for the benefit of less than all series of
Securities, stating that such covenants are
expressly being included solely for the
benefit of such series) or to surrender any
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right or power herein conferred upon the
Company or the Guarantor; or
(3) to add any additional Events of
Default; or
(4) to add to or change any of the
provisions of this Indenture to such extent
as shall be necessary to permit or facilitate
the issuance of Securities in bearer form,
registrable or not registrable as to
principal, and with or without interest
coupons, or to permit or facilitate the
issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any
of the provisions of this Indenture in
respect of one or more series of Securities,
including, without limitation, with respect
to any of the provisions in Article Fourteen,
provided that any such addition, change or
________
elimination (i) shall neither (A) apply to
any Security of any series created prior to
the execution of such supplemental indenture
and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of
any such Security with respect to such
provision or (ii) shall become effective only
when there is no such Security Outstanding;
or
(6) to secure the Securities pursuant
to the requirements of Section 1005, or to
otherwise secure the Securities of any series
or the Guarantees; or
(7) to establish the form or terms of
Securities of any series or the form of
Guarantees as permitted by Sections 201 and
301; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a
successor Trustee with respect to the
Securities of one or more series and to add
to or change any of the provisions of this
Indenture as shall be necessary to provide
for or facilitate the administration of the
trusts hereunder by more than one Trustee,
pursuant to the requirements of
Section 611(b); or
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(9) to cure any ambiguity, to correct
or supplement any provision herein which may
be inconsistent with any other provision
herein, or to make any other provisions with
respect to matters or questions arising under
this Indenture, provided that such action
________
pursuant to this clause (9) shall not
adversely affect the interests of the Holders
of Securities of any series in any material
respect; or
(10) to conform to any mandatory
provisions of law.
Section 902. Supplemental Indentures with Consent
____________________________________
of Holders.
__________
With the consent of the Holders of not less than a
majority of principal amount of the Outstanding Securities
of each series affected by such supplemental indenture, by
Act of said Holders delivered to the Company, the Guarantor
and the Trustee, the Company and the Guarantor, when
authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture
________ _______
shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the
principal of, or any installment of principal
of or interest on, any Security, or reduce
the principal amount thereof or the rate of
interest thereon (including any change in the
Floating or Adjustable Rate Provision
pursuant to which such rate is determined
that would reduce such rate for any period)
or any premium payable upon the redemption
thereof, or reduce the amount of the
principal of an Original Issue Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or
currency in which, any Security or any
premium or interest thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case
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of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, the consent of whose Holders is
required for any such supplemental indenture,
or the consent of whose Holders is required
for any waiver (of compliance with certain
provisions of this Indenture or certain
defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of
this Section, Section 513 or Section 907,
except to increase any such percentage or to
provide that certain other provisions of this
Indenture cannot be modified or waived
without the consent of the Holder of each
Outstanding Security affected thereby,
provided, however, that this clause shall not
________ _______
be deemed to require the consent of any
Holder with respect to changes in the
references to "the Trustee" and concomitant
changes in this Section and Section 907, or
the deletion of this proviso, in accordance
with the requirements of Sections 611(b) and
901(8), or
(4) modify or affect in any manner
adverse to the interests of the Holders of
any Securities the terms and conditions of
the obligations of the Guarantor in respect
of the due and punctual payment of the
principal thereof, premium, if any, and
interest, if any, thereon or any sinking fund
payments provided in respect thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient
if such Act shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
____________________________________
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
_________________________________
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
___________________________________
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act.
Section 906. Reference in Securities to
__________________________
Supplemental Indentures.
_______________________
Securities of any series authenticated and
delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture.
If the Company and the Guarantor shall so determine, new
Securities of any series so modified as to conform, in the
opinion of the Trustee, the Company and the Guarantor, to
any such supplemental indenture may be prepared and executed
by the Company, the Guarantees endorsed thereon may be
executed by the Guarantor and such Securities may be
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
Section 907. Waiver of Compliance by Holders.
_______________________________
Anything in this Indenture to the contrary
notwithstanding, any of the acts which the Company or the
Guarantor is required to do, or is prohibited from doing, by
any of the provisions of this Indenture may, to the extent
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that such provisions might be changed or eliminated by a
supplemental indenture pursuant to Section 902 upon consent
of holders of not less than a majority in aggregate
principal amount of the then Outstanding Securities of the
series affected, be omitted or done by the Company or the
Guarantor, as the case may be, if there is obtained the
prior consent or waiver of the holders of at least a
majority in aggregate principal amount of the then
Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
__________________________________________
The Company covenants and agrees for the benefit
of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of and any
premium and interest on the Securities of that series in
accordance with the terms of the Securities and this
Indenture.
Section 1002. Maintenance of Office or Agency by Company
__________________________________________
and Guarantor.
_____________
(a) So long as any Securities are Outstanding,
the Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment,
where Securities of that series may be surrendered for
registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate
one or more other offices or agencies where the Securities
of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind
such designations; provided, however, that no such
________ _______
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to
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the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
(b) So long as any Securities are Outstanding,
the Guarantor will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment
under the Guarantees endorsed thereon and where notices and
demands to or upon the Guarantor in respect of the
Guarantees endorsed on the Securities of that series and
this Indenture may be served. The Guarantor will give
prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at
any time the Guarantor shall fail to maintain any such
required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Guarantor
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Guarantor may also from time to time designate
one or more other offices or agencies where the Securities
of one or more series may be presented or surrendered for
such purpose or where such notices or demands may be served
and may from time to time rescind such designations;
provided, however, that no such designation or rescission
________ _______
shall in any manner relieve the Guarantor of its obligation
to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Guarantor
will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to
________________________________
Be Held in Trust.
________________
If the Company or the Guarantor shall at any time
act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each
due date of the principal of or any premium or interest on
any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay such amount, such sum to be held as
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provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of
any payment in respect of the Securities of that series, and
upon the written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company or the Guarantor, in
trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the
Company or the Guarantor, as the case may be, on Company
Request, or (if then held by the Company or the Guarantor)
shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor,
look only to the Company or the Guarantor for payment
thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of
the Company or the Guarantor as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
________ _______
Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English
language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of
New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the
Company or the Guarantor, as the case may be.
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Section 1004. Statement by Officers as to Default.
___________________________________
The Company and the Guarantor will each deliver to
the Trustee within 120 days after the end of each fiscal
year of the Guarantor ending after the date hereof, a
certificate signed by the Company's or the Guarantor's, as
the case may be, principal executive officer, principal
financial officer or principal accounting officer stating
whether or not to the best knowledge of the signer thereof
the Company or the Guarantor, as the case may be, is in
compliance with all terms, conditions and covenants of this
Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the signer
has obtained knowledge of any continuing default by the
Company or the Guarantor in the performance, observation or
fulfillment of any such term, condition or covenant,
specifying each such default and the nature thereof.
Section 1005. Limitations on Liens on Common Stock of
_______________________________________
Principal Subsidiaries.
______________________
As long as any of the Securities remains
outstanding, the Guarantor will not, and will not permit any
Principal Subsidiary to, issue, assume, incur or guarantee
any indebtedness for borrowed money secured by a mortgage,
pledge, lien or other encumbrance, directly or indirectly,
on any of the Common Stock of a Principal Subsidiary, which
Common Stock is owned by the Guarantor, by the Company or by
any Principal Subsidiary, unless the obligations of the
Company under the Securities and, if the Company or the
Guarantor so elects, any other indebtedness of the Company
or the Guarantor ranking on a parity with or prior to the
Securities or the Guarantor's obligations under the
Guarantees, as the case may be, shall be secured equally and
ratably with, or prior to, such secured indebtedness for
borrowed money so long as it is outstanding and is so
secured.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
________________________
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
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Section 1102. Election to Redeem; Notice to Trustee.
_____________________________________
In case of any redemption at the election of the
Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities
__________________________________
to Be Redeemed.
______________
If less than all the Securities of any series are
to be redeemed (unless all of the Securities of such series
and of a specified tenor are to be redeemed), the particular
Securities to be redeemed shall be selected not more than
45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that
series. If less than all of the Securities of such series
and of a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than
45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance
with the preceding sentence.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has
been or is to be redeemed.
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Section 1104. Notice of Redemption.
____________________
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at its address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding
Securities of any series are to be redeemed,
the identification (and, in the case of
partial redemption of any Securities, the
principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable
upon each such Security to be redeemed and,
if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such
Securities are to be surrendered for payment
of the Redemption Price, and
(6) that the redemption is for a
sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company
or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
Section 1105. Deposit of Redemption Price.
___________________________
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be
redeemed on that date.
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Section 1106. Securities Payable on Redemption Date.
_____________________________________
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as
________ _______
contemplated by Section 301, installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
and any premium shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
___________________________
Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and
of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or
________________________________________
Covenant Defeasance.
___________________
The Company may elect, at any time, to have either
Section 1202 or Section 1203 applied to the Outstanding
Securities of any series and the Guarantees endorsed
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thereon, upon compliance with the conditions set forth below
in this Article Twelve.
Section 1202. Defeasance and Discharge.
________________________
Upon the Company's exercise of the option provided
in Section 1201 to have this Section 1202 applied to the
Outstanding Securities of any series and the Guarantees
endorsed thereon, the Company and the Guarantor shall each
be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series and the
Guarantees endorsed thereon as provided in this Section on
and after the date the conditions set forth in Section 1204
are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company and the
Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding
Securities of such series and the Guarantees endorsed
thereon and to have satisfied all their other obligations
under the Securities of such series, the Guarantees endorsed
thereon and this Indenture insofar as the Securities of such
series and the Guarantees endorsed thereon are concerned
(and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise
terminated or discharged hereunder: (1) the rights of
Holders of Securities of such series to receive, solely from
the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities
of such series when payments are due, (2) the Company's or
the Guarantor's obligations, as the case may be, with
respect to the Securities of such series under Sections 304,
305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including,
without limitation, its rights under Section 607 and (4)
this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option provided
in Section 1201 to have this Section 1202 applied to the
Outstanding Securities of any series and the Guarantees
endorsed thereon notwithstanding the prior exercise of its
option provided in Section 1201 to have Section 1203 applied
to the Outstanding Securities of such series and the
Guarantees endorsed thereon.
Section 1203. Covenant Defeasance.
___________________
Upon the Company's exercise of the option provided
in Section 1201 to have this Section 1203 applied to the
Outstanding Securities of any series and the Guarantees
endorsed thereon, (1) the Guarantor shall be released from
its obligations under Section 1005 and the Company and the
Guarantor shall be released from their obligations under
Section 801 and (2) the occurrence of any event specified in
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Sections 501(3), 501(4) (with respect to Section 1005 and
Section 801) and 501(5) shall be deemed not to be or result
in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance
means that the Company and the Guarantor may omit to comply
with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be
unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant
____________________________________
Defeasance.
__________
The following shall be the conditions to
application of either Section 1202 or Section 1203 to the
Outstanding Securities of any series:
(1) The Company or the Guarantor shall
irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of Outstanding Securities of
such series, (A) in the case of Securities of such
series denominated in U.S. dollars, (i) money in an
amount, or (ii) U.S. Government Obligations that
through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will
provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on the
Securities of such series on the respective Stated
Maturities, in accordance with the terms of this
Indenture and the Securities of such series or (B) in
the case of Securities of such series denominated in a
currency other than the U.S. dollar, (i) money in such
currency in an amount, or (ii) Foreign Government
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Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance
with their terms will provide, not later than one day
before the due date of any payment, money in such
currency in an amount, or (iii) a combination thereof,
in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any
premium and interest on the Securities of such series
on the respective Stated Maturities, in accordance with
the terms of this Indenture and the Securities of such
series. As used herein, (1) "U.S. Government
Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the
payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an
agency or instrumentality for the United States of
America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with
respect to any specific payment of principal of or
interest on any such U.S. Government Obligation
specified in Clause (x) and held by such custodian for
the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of
or interest on any such U.S. Government Obligation,
provided that (except as required by law) such
________
custodian is not authorized to make any deduction from
the amount payable to the Holder of such depositary
receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by
such depositary receipt and (2) "Foreign Government
Obligation" means (x) any security that is (i) a direct
obligation of the government that issued such currency
for the payment of which full faith and credit of such
government is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or
instrumentality for such government the payment of
which is unconditionally guaranteed as a full faith and
credit obligation by such government, which, in either
case (i) or (ii), is not callable or redeemable at the
option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as custodian
with respect to any specific payment of principal of or
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interest on any such Foreign Government Obligation
specified in Clause (x) and held by such custodian for
the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of
or interest on any such Foreign Government Obligation,
provided that (except as required by law) such
________
custodian is not authorized to make any deduction from
the amount payable to the Holder of such depositary
receipt from any amount received by the custodian in
respect of the Foreign Government Obligation or the
specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the case of an election under Section
1202, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that the Holders of the
Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to
be effected with respect to the Securities of such
series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the case of an election under Section
1203, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holder of
the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes
as result of the deposit and Covenant Defeasance to be
effected with respect to the Securities of such series
and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as
would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the
Trustee an Officers' Certificate to the effect that the
Securities of such series, if then listed on any
securities exchange, will not be delisted as a result
of such deposit.
(5) No Event of Default or event that (after
notice or lapse of time or both) would become an Event
of Default shall have occurred and be continuing at the
time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 501(6)
and 501(7), at any time on or prior to the 90th day
after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until
after such 90th day).
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(6) The Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance
have been complied with.
(7) Such Defeasance or Covenant Defeasance shall
not result in the trust arising from such deposit
constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or
exempt from regulation thereunder.
Section 1205 Deposited Money and U.S. Government Obligations or
___________________________________________________
Foreign Government Obligations to be Held In Trust; Other
__________________________________________________________
Miscellaneous Provisions.
_________________________
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations or
Foreign Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section
1206, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1204 in
respect of the Securities of any series shall be held in
trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any
such Paying Agent (including the Company or the Guarantor
acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of
all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Section 1204 or
the principal and interest received in respect thereof other
than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company or the Guarantor, as the case may be, from time to
time upon Company Request any money or U.S. Government
Obligations or Foreign Government Obligations held by it as
provided in Section 1204 with respect to Securities of any
series that, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in
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excess of the amount thereof that would then be required to
be deposited to effect an equivalent Defeasance or Covenant
Defeasance with respect to the Securities of such series and
the Guarantees endorsed thereon.
Section 1206. Reinstatement.
_____________
If the Trustee or the Paying Agent is unable to
apply any money in accordance with this Article Twelve with
respect to the Securities of any series by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantor's
obligations under this Indenture and the Securities of such
series and the Guarantees endorsed thereon shall be revived
and reinstated as though no deposit had occurred pursuant to
this Article Twelve with respect to Securities of such
series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to
Section 1205 with respect to Securities of such series in
accordance with this Article Twelve; provided, however, that
________ _______
if the Company makes any payment of principal of or any
premium or interest on any Security of such series following
the reinstatement of its obligations or if the Guarantor
makes any payment in respect thereof pursuant to its
Guarantee of such Securities of such series, the Company or
the Guarantor, as the case may be, shall be subrogated to
the rights of the Holders of Securities of such series to
receive such payment from the money so held in trust.
ARTICLE THIRTEEN
Sinking Funds
Section 1301. Applicability of Article.
________________________
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1302. Each sinking fund
payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of
such series.
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Section 1302. Satisfaction of Sinking Fund Payments
_____________________________________
with Securities.
_______________
The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for
redemption) and (2) may apply as a credit Securities of a
series which have been acquired or redeemed either at the
election of the Company pursuant to the terms of such
Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such
Securities or otherwise, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been
________
previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 1303. Redemption of Securities for Sinking Fund.
_________________________________________
Not less than 45 days prior to each sinking fund
payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment 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 Securities of that series pursuant
to Section 1302 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 15 nor more
than 45 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in
the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE FOURTEEN
Guarantee of Securities
SECTION 1401. Guarantee.
_________
The Guarantor hereby unconditionally guarantees to
each Holder of a Security of each series of the Company
authenticated and delivered by the Trustee or an
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Authenticating Agent the due and punctual payment of the
principal of (premium, if any) and interest on such Security
and the due and punctual payment of any sinking fund
payments provided for pursuant to the terms of such
Security, when and as the same shall become due and payable,
whether at Stated Maturity, by declaration of acceleration,
call for redemption or otherwise according to the terms of
such Security and of this Indenture (the "Guaranteed
Obligations"). In case of default by the Company in the
payment of any such principal, premium, interest or sinking
fund payment, the Guarantor agrees duly and punctually to
make any such payment when and as the same shall become due
and payable, whether at the Stated Maturity, by declaration
of acceleration, call for redemption or otherwise, and as if
such payment were made by the Company. The Guarantor hereby
agrees that its obligations hereunder shall be as if it were
principal debtor and not merely surety, and shall be
absolute and unconditional irrespective of, and shall be
unaffected by, the validity, legality or enforceability of
any Security of any series or this Indenture, the absence of
any action to enforce the same or any waiver, modification
or indulgence or consent granted to the Company with respect
thereto by the Holder of any Security of any series or the
Trustee, the recovery of any judgment against the Company or
any action to enforce the same, or any other circumstances
which may otherwise constitute a legal or equitable
discharge of a surety or guarantor; provided, however, that
________ _______
notwithstanding the foregoing, no such waiver, modification
or indulgence shall, without the consent of the Guarantor,
increase the principal amount of a Security or the interest
rate thereon or increase any premium payable upon redemption
thereof. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a
court in the event of merger or bankruptcy of the Company,
any right of set-off or counterclaim, any right to require a
proceeding first against the Company, protect or notice with
respect to any Security or the indebtedness evidenced
thereby or with respect to any sinking fund payment required
pursuant to the terms of a Security issued under this
Indenture and all demands whatsoever, and covenants that
this Guarantee will not be discharged as to any Security
except by payment in full of the principal of (premium, if
any) and interest on such Security.
SECTION 1402. Subrogation.
___________
The Guarantor shall be subrogated to all rights of
the Holder of a Security against the Company in respect of
any amounts paid to such Holder by the Guarantor pursuant to
the provisions of this Guarantee; provided, however, that
________ _______
the Guarantor shall not, without the consent of all Holders
of Securities of such series, be entitled to enforce, or to
receive, any payments arising out of or based upon, such
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right of subrogation until the principal of (and premium, if
any) and interest then due and payable on all Securities of
the relevant series shall have been irrevocably paid in full
in accordance with the terms of such Securities.
SECTION 1403. Reinstatement.
_____________
The Guarantee of the Guarantor is a guarantee of
payment when due and not of collection. The Guarantee shall
continue to be effective, or be reinstated, as the case may
be, in respect of any Security if at any time payment, or
any part thereof, of such Security is rescinded or must
otherwise be restored or returned by the Holder of such
Security or any trustee for said Holder upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of
the Company or any other entity, or upon or as a result of
the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Company or any other
entity or any substantial part of their respective property,
or otherwise, all as though such payments had not been made.
SECTION 1404. Execution and Delivery of Guarantees.
____________________________________
To evidence its guarantee set forth in Section
1401, the Guarantor hereby agrees to execute, subject to
Section 201, the Guarantee in a form established pursuant to
Section 206, to be endorsed on each Security authenticated
and delivered by the Trustee. Each such Guarantee shall be
executed by the Guarantor as provided in Section 303.
The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due
delivery of the Guarantee endorsed thereon on behalf of the
Guarantor.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
AETNA LIFE AND CASUALTY COMPANY
By /s/ Xxxxxx X. Xxxxx, Xx.
________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President,
Corporate Finance
[Seal]
Attest:
/s/ Xxxxx X. Xxxxxxx
_______________________
AETNA INC.
By /s/ Xxxxxx X. Xxxxx, Xx.
________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President,
Corporate Finance
[Seal]
Attest:
/s/ Xxxxx X. Xxxxxxx
_______________________
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
By /S/ Xxxx Xxxxx
_______________________
Name: Xxxx Xxxxx
Title: Assistant Vice President
[Seal]
Attest:
/s/ Xxxxxx X. Xxxxxxx
_______________________
-00-
XXXXX XX XXXXXXXXXXX )
) ss.:
COUNTY OF HARTFORD )
On the 15th day of August, 1996, before me
personally came Xxxxxx X. Xxxxx, Xx., to me known, who, being
by me duly sworn, did depose and say that he is the
Vice President, Corporate Finance of AETNA LIFE AND CASUALTY
COMPANY, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
/s/ Xxxxx X. Xxxxxxxxxx
_______________________
Notary Public
-00-
XXXXX XX XXXXXXXXXXX )
) ss.:
COUNTY OF HARTFORD )
On the 15th day of August, 1996, before me personally
came Xxxxxx X. Xxxxx, Xx., to me known, who, being by me duly
sworn, did depose and say that he is Vice President, Corporate
Finance of AETNA INC., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
/s/ Xxxxx X. Xxxxxxxxxx
_______________________
Notary Public
-00-
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
) ss.:
COUNTY OF SUFFOLK )
On the 15th day of August, 1996, before me personally
came Xxxx Xxxxx, to me known, who, being by me duly sworn, did
depose and say that she is Assistant Vice President of STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, one of the corporations described in and which
executed the foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that she signed her name
thereto by like authority.
/s/ Xxxxx X. Xxxxxxx
____________________
Notary Public
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