EXHIBIT 4.15
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INDENTURE
Between
PROVIDIAN FINANCIAL CORPORATION
and
____________________, AS TRUSTEE
Dated as of __________ __, 1998
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS...............................................................................1
Section 1.1. Certain Terms Defined............................................................1
ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES.......................................................7
Section 2.1. Amount, Series, Execution, Authentication and Delivery of Securities.............7
Section 2.2. Form of Securities and Trustee's Certificate of Authentication................. 12
Section 2.3. Denominations; Payment of Interest on Fully Registered Securities.............. 13
Section 2.4. Execution of Securities........................................................ 14
Section 2.5. Registration, Transfer and Exchange of Securities.............................. 15
Section 2.6. Temporary Securities........................................................... 16
Section 2.7. Mutilated, Destroyed, Lost or Stolen Securities................................ 17
Section 2.8. Cancellation and Destruction of Surrendered Securities......................... 17
Section 2.9. Securities in Global Form; Depositories........................................ 18
ARTICLE 3 REDEMPTION OF SECURITIES................................................................ 19
Section 3.1. Redemption of Securities....................................................... 19
Section 3.2. Notice of Redemption........................................................... 19
Section 3.3. Selection of Securities for Redemption......................................... 20
Section 3.4. Partial Redemption of Registered Security...................................... 20
Section 3.5. Effect of Redemption........................................................... 20
ARTICLE 4 PARTICULAR COVENANTS OF THE CORPORATION................................................. 21
Section 4.1. Payment of Principal of and Interest on Securities............................. 21
Section 4.2. Corporate Existence of the Corporation; Consolidation, Merger, Sale
or Transfer.................................................................... 21
Section 4.3. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange and Payment of Securities............................................. 22
Section 4.4. Appointment to Fill a Vacancy in the Office of Trustee......................... 22
Section 4.5. Duties of Paying Agent......................................................... 22
Section 4.6. Notice of Default.............................................................. 23
ARTICLE 5 SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE............................................................. 23
Section 5.1. Corporation to Furnish Trustee Information As to the Names and
Addresses of Securityholders................................................... 23
Section 5.2. Preservation of Information; Communication to Securityholders.................. 24
Section 5.3. Reports by Corporation......................................................... 25
Section 5.4. Reports by Trustee............................................................. 26
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT........................................................................ 28
Section 6.1. Events of Default; Acceleration, Waiver of Default and Restoration of
Position and Rights........................................................... 28
Section 6.2. Covenant of Corporation to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal..................... 30
Section 6.3. Trustee May File Proofs of Claim.............................................. 31
Section 6.4. Trustee May Enforce Claims Without Possession of Securities................... 32
Section 6.5. Application of Moneys Collected By Trustee.................................... 32
Section 6.6. Limitation on Suits By Holders of Securities.................................. 33
Section 6.7. Rights and Remedies Cumulative................................................ 33
Section 6.8. Delay or Omission Not Waiver.................................................. 34
Section 6.9. Control By Holders; Waiver of Past Defaults................................... 34
Section 6.10. Trustee to Give Notice of Defaults Known to It, But May Withhold in
Certain Circumstances......................................................... 35
Section 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under
the Indenture or Against the Trustee.......................................... 35
ARTICLE 7 CONCERNING THE TRUSTEE.................................................................. 35
Section 7.1. Certain Duties and Responsibilities of Trustee................................ 35
Section 7.2. Certain Rights of Trustee..................................................... 37
Section 7.3. Trustee Not Responsible for Recitals or Application of Proceeds............... 38
Section 7.4. Trustee May Own Securities.................................................... 38
Section 7.5. Moneys Received by Trustee to be Held in Trust................................ 38
Section 7.6. Trustee Entitled to Compensation, Reimbursement and Indemnity................. 38
Section 7.7. Right of Trustee to Rely on Officer's Certificate Where No Other
Evidence Specifically Prescribed.............................................. 39
Section 7.8. Disqualification; Conflicting Interest........................................ 39
Section 7.9. Requirements for Eligibility of Trustee....................................... 46
Section 7.10. Resignation and Removal of Trustee; Appointment of Successor.................. 46
Section 7.11. Acceptance of Appointment by Successor Trustee................................ 47
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession to
Business...................................................................... 48
Section 7.13. Preferential Collection of Claims Against Corporation......................... 49
ARTICLE 8 CONCERNING THE SECURITYHOLDERS.......................................................... 53
Section 8.1. Evidence of Action by Securityholders......................................... 53
Section 8.2. Proof of Execution of Instruments and of Holding of Securities................ 53
Section 8.3. Who May be Deemed Owners of Securities........................................ 54
Section 8.4. Securities Owned by the Corporation or Controlled or Controlling
Persons Disregarded for Certain Purposes...................................... 54
Section 8.5. Instruments Executed by Securityholders Bind Future Holders................... 55
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ARTICLE 9 SECURITYHOLDERS' MEETINGS............................................................... 55
Section 9.1. Purposes for Which Meetings May be Called..................................... 55
Section 9.2. Manner of Calling Meetings.................................................... 56
Section 9.3. Call of Meeting by the Corporation or Securityholders......................... 56
Section 9.4. Who May Attend and Vote at Meetings........................................... 56
Section 9.5. Regulations May be Made by Trustee; Conduct of the Meeting;
Voting Rights - Adjournment................................................... 56
Section 9.6. Manner of Voting at Meetings and Record to be Kept............................ 57
Section 9.7. Exercise of Rights of Trustee and Securityholders Not to be Hindered
or Delayed.................................................................... 58
ARTICLE 10 SUPPLEMENTAL INDENTURES................................................................. 58
Section 10.1. Purposes for Which Supplemental Indentures May be Entered Into
Without Consent of Securityholders............................................ 58
Section 10.2. Modification of Indenture with Consent of Holders of Securities............... 59
Section 10.3. Effect of Supplemental Indentures............................................. 61
Section 10.4. Securities May Bear Notation of Changes by Supplemental Indentures............ 61
ARTICLE 11 DISCHARGE; DEFEASANCE................................................................... 61
Section 11.1. Discharge of Indenture........................................................ 61
Section 11.2. Discharge of Liability on Securities.......................................... 62
Section 11.3. Discharge of Certain Covenants and Other Obligations.......................... 62
Section 11.4. Discharge of Certain Obligations Upon Deposit of Money or
Securities with Trustee....................................................... 62
Section 11.5. Unclaimed Moneys.............................................................. 64
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS........................................................................... 64
Section 12.1. Incorporators, Stockholders, Officers and Directors of Corporation
Exempt From Individual Liability.............................................. 64
ARTICLE 13 MISCELLANEOUS PROVISIONS................................................................ 65
Section 13.1. Successors and Assigns of the Corporation Bound by Indenture.................. 65
Section 13.2. Notices; Effectiveness........................................................ 65
Section 13.3. Compliance Certificates and Opinions.......................................... 66
Section 13.4. Days on Which Payment to be Made, Notice Given or Other Action
Taken......................................................................... 67
Section 13.5. Provisions Required by Trust Indenture Act of 1939 to Control................. 67
Section 13.6. Governing Law................................................................. 67
Section 13.7. Provisions of the Indenture and Securities for the Sole Benefit of the
Parties and the Securityholders............................................... 67
Section 13.8. Indenture May be Executed in Counterparts..................................... 67
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TABLE SHOWING REFLECTION IN THIS INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 19391
Section Section
of Act of Indenture
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310(a)(1) ..................................... 7.9
310(a)(2) ..................................... 7.9
310(a)(3) ..................................... Inapplicable
310(a)(4) ..................................... Inapplicable
310(a)(5) ..................................... 7.9
310(b) ..................................... 7.8, 7.10
310(c) ..................................... Inapplicable
311(a) ..................................... 7.13(a), 7.13(c)
311(b) ..................................... 7.13(b), 7.13(c)
311(c) ..................................... Inapplicable
312(a) ..................................... 5.1, 5.2(a)
312(b) ..................................... 5.2(b)
312(c) ..................................... 5.2(c)
313(a) ..................................... 5.4(a)
313(b)(1) ..................................... Inapplicable
313(b)(2) ..................................... 5.4(b)
313(c) ..................................... 5.4(c)
313(d) ..................................... 5.4(d)
314(a)(1) ..................................... 5.3(a)
314(a)(2) ..................................... 5.3(b)
314(a)(3) ..................................... 5.3(c)
314(a)(4) ..................................... 5.3(d)
314(b) ..................................... Inapplicable
314(c) ..................................... 13.3
314(d) ..................................... Inapplicable
314(e) ..................................... 13.3
314(f) ..................................... Omitted
315(a) ..................................... 7.1
315(b) ..................................... 6.10
315(c) ..................................... 7.1
315(d) ..................................... 7.1
315(e) ..................................... 6.11
316(a)(1) ..................................... 6.9
316(a)(2) ..................................... Omitted
316(b) ..................................... 6.6
316(c) ..................................... 6.9
317(a) ..................................... 6.2, 6.3
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1 This Table is not part of the Indenture.
317(b) ..................................... 4.8
318(a) ..................................... 13.5
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INDENTURE
THIS INDENTURE, dated as of __________ __, 1998, between PROVIDIAN
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
____________________, a ____________________ organized and existing under the
laws of ______________ (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Corporation has duly authorized the issuance, sale,
execution and delivery, from time to time, of its unsecured evidences of
indebtedness (hereinafter referred to as the "Securities"), without limit as to
principal amount, issuable in one or more Series, the amount and terms of each
such Series to be determined as hereinafter provided; and, to provide the terms
and conditions upon which the Securities are to be issued, authenticated and
delivered, the Corporation has duly authorized the execution of this Indenture;
and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Corporation and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Corporation, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects been
duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are to be issued, authenticated and delivered, and in consideration
of the premises and of the purchase and acceptance of the Securities by the
Holders thereof, the Corporation covenants and agrees with the Trustee, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities or of any Series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. CERTAIN TERMS DEFINED. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One, and include the plural as well as
the singular;
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(b) all other terms used herein which are defined in the Trust
Indenture Act of 1939, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall
have the meanings assigned to them and all computations herein provided
for shall be made, in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"
shall mean such principles as they exist at the date of applicability
thereof; and
(d) 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.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Corporation, or any duly authorized committee of such Board of Directors.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York is neither a legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
CERTIFIED RESOLUTION
The term "Certified Resolution" shall mean a resolution of the Board of
Directors of the Corporation certified by the Secretary or by an Assistant
Secretary of the Corporation to have been duly adopted by the Board of Directors
of the Corporation and to be in full force and effect on the date of such
certification.
COMMISSION
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or if at any time after the execution of this
Indenture such Commission is not existing and performing the duties theretofore
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
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CORPORATION
The term "Corporation" shall mean Providian Financial Corporation, a
Delaware corporation, until a successor entity shall have become such pursuant
to the applicable provisions hereof, and thereafter "Corporation" shall mean
such successor entity.
DEPOSITORY
The term "Depository" shall mean, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Corporation pursuant to
Section 2.1 of this Indenture until a successor Depository shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter the
term "Depository" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more than one such Person, "Depository"
as used with respect to the Securities of any such Series shall mean the
Depository with respect to the Securities of that Series.
EVENT OF DEFAULT
The term "Event of Default" with respect to Securities of any Series
shall mean any event specified as such in Section 6.1 and any other event as may
be established with respect to the securities of such Series as permitted by
Section 2.1. An Event of Default shall "exist" if an Event of Default shall have
occurred and be continuing.
GLOBAL SECURITY
The term "Global Security" shall mean a Security evidencing all or a
portion of a Series of Securities, issued under the Indenture and delivered to
the Depository for such Series in accordance with Section 2.9 of this Indenture,
and bearing the legend prescribed in such Section 2.9.
INDENTURE
The term "Indenture" shall mean this instrument as originally executed,
or as it may from time to time be supplemented, modified or amended, as provided
herein, and shall include the form and terms of particular Series of Securities
established in accordance with the provisions of Sections 2.1 and 2.2.
INTEREST PAYMENT DATE
The term "Interest Payment Date" when used with respect to any Security
means the Stated Maturity of an installment of interest on such Security.
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OFFICER'S CERTIFICATE
The term "Officer's Certificate" shall mean a certificate signed by the
Chairman of the Board, any Vice-Chairman of the Board or the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Corporation. Each such certificate shall include the
statements provided for in Section 13.3, if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel to the Corporation. Each such opinion shall include the
statements provided for in Section 13.3, if and to the extent required by the
provisions of such Section.
ORIGINAL ISSUE DISCOUNT SECURITY
The term "Original Issue Discount Security" shall mean (a) any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.1 or (b) any other Security which for United States Federal income tax
purposes would be considered an original issue discount security.
OUTSTANDING
The term "Outstanding" when used with reference to Securities shall,
subject to the provisions of Section 8.4, mean, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for whose payment or redemption moneys in the
necessary amount have been theretofore deposited with the Trustee or
with any Paying Agent in trust for the Holders of such Securities,
provided that if such Securities are to be redeemed, notice of such
redemption has been duly given as provided in Article Three hereof, or
provision therefor satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other
Securities shall have been authenticated and delivered under this
Indenture; and
(d) Securities alleged to have been destroyed, lost or stolen
which have been paid as provided in Section 2.7 hereof.
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In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination as if a declaration of acceleration of the maturity
thereof pursuant to Section 6.1 had been made.
PAYING AGENT
The term "Paying Agent" means any Person authorized by the Corporation
to pay the principal of and any interest and premium on any Securities on behalf
of the Corporation.
PERIODIC OFFERING
The term "Periodic Offering" means an offering from time to time of
Securities of a Series, the specific terms of which (including, without
limitation, the rate or rates of interest, if any, thereon or any methods of
calculating such, the maturity date or dates thereof and any redemption
provisions with respect thereto) are to be determined by the Corporation or its
agents upon the issuance of such Series of Securities.
PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE
The term "Principal Office of the Trustee" shall mean the principal
office of the Trustee in ______________________ at which at any particular time
its corporate trust business shall be administered, except that with respect to
presentation of Securities for payment such term shall mean the office or agency
of the Trustee at which at any particular time its corporate agency business
shall be conducted. The present address of the principal office at which the
corporate trust business of the Trustee is administered is
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RECORD DATE
The term "Record Date" for the interest payable on any Interest Payment
Date on any Series of Securities shall mean the date specified as such in the
Securities of such Series.
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REDEMPTION DATE
The term "Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
REDEMPTION PRICE
The term "Redemption Price" when used with respect to any Security to
be redeemed means the price at which it is to be redeemed pursuant to this
Indenture. It includes any applicable premium but does not include installments
of interest whose Stated Maturity is on or before the Redemption Date.
REGISTER
The term "Register" shall mean the books for the registration and
transfer of Securities which books are kept by the Trustee pursuant to Section
2.5.
RESPONSIBLE OFFICER
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, 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 of
the Trustee to whom such matter is referred because of such Person's knowledge
of and familiarity with the particular subject.
SECURITY OR SECURITIES
The terms "Security" or "Securities" shall mean any security or
securities of the Corporation without regard to Series, authenticated and
delivered under this Indenture.
SECURITYHOLDER; HOLDER
The terms "Securityholder" or "Holder," whenever employed herein with
respect to a Security, shall mean the Person in whose name such Security shall
be registered on the Register.
SERIES
The term "Series" shall mean an issue of Securities under this
Indenture.
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STATED MATURITY
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
SUPPLEMENTAL INDENTURE
The term "Supplemental Indenture" shall mean an indenture supplemental
hereto as such Supplemental Indenture may be originally executed, or as it may
from time to time be supplemented, modified or amended, as provided herein and
therein.
TRUSTEE
The term "Trustee" shall mean ________________ until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee.
TRUST INDENTURE ACT OF 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Indenture.
UNITED STATES DOLLARS
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.1. AMOUNT, SERIES, EXECUTION, AUTHENTICATION AND DELIVERY OF
SECURITIES. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The Securities
may be issued in one or more Series.
(A) The following terms and provisions of each Series of Securities
shall be established by a resolution of the Board of Directors and set forth in
either a Certified Resolution or a Supplemental Indenture:
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(1) the designation of the Series of Securities (which shall
distinguish the Securities of such Series from all other Series of
Securities),
(2) any limit upon the aggregate principal amount of the particular
Series of Securities which may be executed, authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that nothing
contained in this Section 2.1 or elsewhere in this Indenture or in
the Securities or in such Certified Resolution or in a
Supplemental Indenture is intended to or shall limit execution by
the Corporation or authentication and delivery by the Trustee of
Securities under the circumstances contemplated by Sections 2.5,
2.6, 2.7, 3.4 and 10.4,
(3) the currency or currencies or composite currency in which
principal of and interest and any premium on such Series of
Securities shall be payable (if other than in United States
Dollars),
(4) the Stated Maturity for payment of principal of such Series of
Securities and any sinking fund or analogous provisions,
(5) the rate or rates at which such Series of Securities shall bear
interest or the method of calculating such rate or rates of
interest and the Interest Payment Dates for such Series of
Securities,
(6) the place or places where such Series of Securities may be
presented for payment and for the other purposes provided in
Section 4.6,
(7) any Redemption Price or Prices, the Redemption Date or Dates and
other applicable redemption or repurchase provisions for such
Series of Securities,
(8) whether such Series of Securities shall be issuable as one or more
Global Securities and the form of such Series of Securities,
(9) if the Securities of such Series shall be issued in whole or in
part as one or more Global Securities, the Depository for such
Global Security or Securities and any additional terms and
conditions relating to such Global Securities not set forth in
this Indenture,
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(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which such Series of Securities
shall be issuable,
(11) the date from which interest on such Securities shall accrue,
(12) the basis upon which interest on such Series of Securities shall
be computed (if other than on the basis of a 360-day year of
twelve 30-day months),
(13) if other than the principal amount thereof, the portion of the
principal amount of such Series of Securities which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.1,
(14) the Person or Persons who shall be registrar for such Series of
Securities, and the place or places where the Register of such
Series of Securities shall be kept,
(15) any additional events of default with respect to the Securities of
a particular Series not set forth herein,
(16) any additional covenants of the Corporation with respect to the
Securities of a particular Series not set forth herein,
(17) the terms and conditions, if any, upon which any Securities of
such Series may or shall be converted into other instruments or
other forms of property, and
(18) any other terms of such Series of Securities (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one Series shall be substantially identical
except that any Series may have serial maturities and different interest rates
for different maturities and except as to denomination and the differences
herein specified between Global Securities and Securities issued in definitive
form and except as may otherwise be provided in or pursuant to the Certified
Resolution or Supplemental Indenture relating to such Series of Securities. All
Securities of any one Series need not be issued at the same time, and, unless
otherwise provided in the Certified Resolution or Supplemental Indenture
relating to such Series, a Series may be reopened for issuances of additional
Securities of such Series.
(B) At any time and from time to time after the execution and delivery
of this Indenture, the Corporation may deliver any Series of Securities executed
by the Corporation to the Trustee for authentication by it, and the Trustee
shall thereupon authenticate and deliver said Securities (or if only a single
Global Security, such Global Security) to or upon
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the written order of the Corporation, signed by an officer of the Corporation,
without any further corporate action. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities and except as hereinafter provided with respect to a Series of
Securities subject to a Periodic Offering, the Trustee shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon:
(1) each Certified Resolution relating to such Series of Securities,
(2) an executed Supplemental Indenture, if any, relating to such
Series of Securities,
(3) an Opinion of Counsel to the effect that:
(a) the terms and form of such Securities have been established
as permitted by Sections 2.1 and 2.2 in conformity with the
provisions of this Indenture,
(b) such Securities, when executed and issued by the Corporation
and authenticated and delivered by the Trustee in accordance
with the provisions of this Indenture and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Corporation,
except as any rights thereunder may be limited by the effect
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable
court decisions invoking statutes or principles of equity,
which have held that certain covenants and provisions of
agreements are unenforceable where the breach of such
covenants or provisions imposes restrictions or burdens upon
a borrower, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is necessary for
the protection of the creditor, or which have held that the
creditor's enforcement of such covenants or provisions under
the circumstances would have violated the creditor's
covenants of good faith and fair dealing implied under
California law; and the effect of
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California statutes and rules of law which cannot be
waived prospectively by a borrower, and
(c) the Corporation has complied with all applicable Federal laws
and requirements in respect of the execution and delivery of
such Securities.
With respect to a Series of Securities subject to a Periodic Offering, the
Trustee shall be entitled to receive, and, subject to Section 7.1, shall be
fully protected in relying upon the documents described in the foregoing
subsections (1), (2) and (3) of this Section 2.1(B); PROVIDED THAT (i) the
Certified Resolution may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery, (ii) the Trustee
shall authenticate and deliver Securities of such Series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount, if any, established for such Series, pursuant to such
Certified Resolution or pursuant to such procedures as may be specified from
time to time by a Certified Resolution, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates or the method or methods of
calculating such and any other terms of the Securities of such Series shall be
determined by the Certified Resolution or pursuant to such procedures, (iv) if
provided for in such procedures, such Certified Resolution may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Corporation or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing and (v) the Trustee shall be entitled to
receive an Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such Series and the opinions described in the
foregoing subsections (3)(a) and (3)(b) of this Section 2.1(B) may be to the
effect that:
(x) the form of the Securities of such Series has been duly
authorized by the Corporation and has been established in conformity
with the provisions of this Indenture and that, when the terms of such
Securities shall have been established pursuant to a Certified
Resolution or pursuant to such procedures as may be specified from time
to time by a Certified Resolution, such terms will have been duly
authorized by the Corporation and will have been established in
conformity with the provisions of this Indenture, and
(y) Securities of such Series, when executed and issued by the
Corporation and completed, authenticated and delivered by the Trustee
in accordance with the provisions of this Indenture and subject to any
conditions specified in such Opinion of Counsel and when paid for, all
as contemplated by and in accordance with the Certified Resolution or
specified procedures, as the case may be, will constitute valid and
binding obligations of the Corporation, except as any rights thereunder
may be limited by the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally; the rules
governing the availability of specific performance, injunctive relief
or other equitable remedies and general
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principles of equity, regardless of whether considered in a proceeding
in equity or at law; the effect of applicable court decisions invoking
statutes or principles of equity, which have held that certain
covenants and provisions of agreements are unenforceable where the
breach of such covenants or provisions imposes restrictions or burdens
upon a borrower, and it cannot be demonstrated that the enforcement of
such restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement of such
covenants or provisions under the circumstances would have violated the
creditor's covenants of good faith and fair dealing implied under
California law; and the effect of California statutes and rules of law
which cannot be waived prospectively by a borrower.
With respect to Securities of a Series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation of any such
Securities, the form and terms thereof and the valid and binding effect thereof,
upon the Opinion of Counsel and other documents delivered pursuant to this
Section 2.1 in connection with the first authentication of Securities of such
Series unless and until such Opinion of Counsel or other documents shall have
been superseded or revoked. In connection with the authentication and delivery
of Securities of a Series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the instructions of the Corporation to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency having jurisdiction over the Corporation.
Each fully registered Security shall be dated the date of its
authentication.
SECTION 2.2. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities of each Series shall be substantially of the
tenor and purport as shall be authorized by the related Certified Resolution or
Supplemental Indenture, 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 or designation and such legends or endorsements thereon as the
Board of Directors may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Securities of such Series may be listed, or
to conform to usage.
The definitive Securities and each Global Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
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The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated
herein, referred to in the within-mentioned Indenture.
____________________, as Trustee
By
------------------------------------
Authorized Officer
SECTION 2.3. DENOMINATIONS; PAYMENT OF INTEREST ON FULLY REGISTERED
SECURITIES. The Securities of each Series may be issued as fully registered
Securities in denominations as shall be specified as contemplated by Section
2.1. In the absence of such provisions with respect to the Securities of any
Series, the Securities of such Series (other than any Global Securities) shall
be issued in denominations of $1,000 and any integral multiple thereof.
If the Securities of any Series shall bear interest, each Security of
such Series shall bear interest from the applicable date at the rate per annum
specified in the Certified Resolution or Supplemental Indenture with respect to
such Series of Securities. Unless otherwise specified in the Certified
Resolution or Supplemental Indenture with respect to the Securities of any
Series, interest on the Securities of such Series shall be computed on the basis
of a 360-day year of twelve 30-day months. Such interest shall be payable on the
Interest Payment Dates specified in the Certified Resolution or Supplemental
Indenture with respect to such Series of Securities. The Person in whose name
any Security is registered at the close of business on the applicable Record
Date for the Series of which such Security is a part shall be entitled to
receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date
unless such Security shall have been called for redemption on a Redemption Date
which is subsequent to such Record Date and prior to such Interest Payment Date
or unless the Corporation shall default in the payment of interest due on such
Interest Payment Date on any Security of such Series.
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
registered Holder on the relevant Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the
Corporation, at its election in each case, as provided in subsection A or B
below:
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A. The Corporation may elect to make payment of any Defaulted
Interest on the Securities of any Series to the Persons in whose names
such 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 Corporation shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each Security and the date of the proposed payment (which date shall be
such as will enable the Trustee to comply with the next sentence
hereof), and at the same time the Corporation 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
subsection provided. Thereupon the Trustee shall fix a special record
date (the "Special Record Date") for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Corporation of such Special Record
Date and, in the name and at the expense of the Corporation, 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 a Security of such Series at such Holder's 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such Series are registered on such
Special Record Date and shall no longer be payable pursuant to the
following subsection B.
B. The Corporation may make payment of any Defaulted Interest
on the Securities of any 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 Corporation to the
Trustee of the proposed payment pursuant to this subsection, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.3, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security and each such Security
shall bear interest from such date, such that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
SECTION 2.4. EXECUTION OF SECURITIES. The Securities shall be executed
manually or in facsimile, by an officer and the Secretary or an Assistant
Secretary of the Corporation
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under its corporate seal, which may be affixed thereto or printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
recited herein, executed by the Trustee manually by an authorized officer, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate of authentication of the Trustee upon any Security
executed by the Corporation shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture. Typographical or other
errors or defects in the seal or facsimile signature on any Security or in the
text thereof shall not affect the validity or enforceability of such Security if
it has been duly authenticated and delivered by the Trustee.
In case any officer of the Corporation who shall have signed any of the
Securities (manually or in facsimile) shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Corporation, such Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities had not ceased to be such officer of the Corporation. Also, any
Security may be signed on behalf of the Corporation by such Persons as on the
actual date of execution of such Security shall be the proper officers of the
Corporation, although at the date of the execution of this Indenture or on the
nominal date of such Security any such Person was not such officer.
SECTION 2.5. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES. Except
as specifically otherwise provided herein with respect to Global Securities,
Securities of any Series may be exchanged for a like aggregate principal amount
of Securities of the same Series of other authorized denominations. Securities
to be exchanged shall be surrendered at the offices or agencies to be maintained
in accordance with the provisions of Section 4.3 and the Corporation shall
execute the Security or Securities, and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities which the Securityholder
making the exchange shall be entitled to receive.
The Corporation shall keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Corporation in accordance with the
provisions of Section 4.3 with respect to the Securities of each Series, the
Register in which, subject to such reasonable regulations as it may prescribe,
the Corporation shall provide for the registration of the Securities of such
Series and the transfer of Securities of such Series as in this Article
provided. The Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times the Register shall be open for inspection by the Trustee and any registrar
of the Securities of such Series other than the Trustee. Upon due presentment
for transfer of any Security of any Series at the offices or agencies of the
Corporation to be maintained in accordance with Section 4.3 with respect to the
Securities of such Series, the Corporation shall execute a new Security and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same Series for a like aggregate
principal amount of authorized denominations.
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Notwithstanding any other provisions of this Section 2.5, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series may
not be transferred except as a whole by the Depository for such Series to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository for such Series or a nominee of such successor
Depository.
All Securities of any Series presented or surrendered for exchange,
transfer, redemption, conversion or payment shall, if so required by the
Corporation or any registrar of the Securities of such Series, be accompanied by
a written instrument or instruments of transfer, in form satisfactory to the
Corporation and such registrar, duly executed by the registered Holder or by
such Person's attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Corporation shall not be required to exchange or transfer (a) any
Securities of any Series during a period beginning at the opening of business 15
days before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities of such Series and ending
at the close of business on the day of such publication or mailing, (b) any
Securities called or selected for redemption in whole or in part, except, in the
case of Securities called for redemption in part, the portion thereof not so
called for redemption in whole or in part or during a period beginning at the
opening of business on any Record Date for such Series and ending at the close
of business on the relevant Interest Payment Date therefor.
SECTION 2.6. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any Series, the Corporation may execute and the Trustee
shall authenticate and deliver temporary Securities of such Series which are
printed, lithographed, typewritten or otherwise produced, in any denomination
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. Every such
temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. If temporary Securities are issued, the Corporation
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such
Series shall be exchangeable for definitive Securities upon surrender of the
temporary Securities without charge to the Holder at the offices or agencies to
be maintained by the Corporation as provided in Section 4.3 with respect to the
Securities of such Series. Upon surrender for cancellation of any one or more
temporary Securities the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such Series. Until so
exchanged, the
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temporary Securities of any Series shall in all respects be entitled to the
benefits of this Indenture and interest thereon, when and as payable, shall be
paid to the registered owners thereof.
SECTION 2.7. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. If (i)
any mutilated Security is surrendered to the Trustee, or the Corporation and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) there is delivered to the Corporation and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Corporation or the Trustee that
such Security has been acquired by a bona fide purchaser, the Corporation shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or 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, 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 Corporation in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.7, the
Corporation 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 connected therewith.
Every new Security issued pursuant to this Section 2.7 in exchange for
or in lieu of any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Corporation, whether or not
the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the security and benefits of
this Indenture equally and ratably with all other Outstanding Securities of such
Series.
The provisions of this Section 2.7 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 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption, transfer, conversion or
exchange shall, if surrendered to the Corporation, the Trustee or any agent of
the Corporation or of the Trustee, be delivered to the Trustee, and the same,
together with Securities surrendered to the Trustee for cancellation, shall be
canceled by it and thereafter disposed of by it as directed by the Corporation,
and no Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall destroy canceled
Securities and deliver a certificate of destruction thereof to the Corporation
unless by an Officer's Certificate of the Corporation, the Corporation shall
direct that canceled Securities be returned to it. If the Corporation shall
purchase or otherwise acquire any of the Securities, however, such purchase or
acquisition shall not operate as a payment,
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redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Corporation, at its option, shall deliver or surrender the
same to the Trustee for cancellation.
SECTION 2.9. SECURITIES IN GLOBAL FORM; DEPOSITORIES.
(a) Each Global Security shall: (i) represent and be denominated in an
aggregate amount equal to the aggregate principal amount of the Securities of
the Series to be represented by such Global Security, (ii) be registered in the
name of either the Depository for such Global Security or the nominee of such
Depository, (iii) be delivered by the Trustee to such Depository or pursuant to
such Depository's written instruction and (iv) bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Global Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the Depository
or by the Depository or any nominee to a successor Depository or a nominee of
any successor Depository." The notation of the record owner's interest in such
Global Security upon the original issuance thereof shall be deemed to be
delivery in connection with the original issuance of each beneficial owner's
interest in such Global Security. Without limiting the foregoing, the
Corporation and the Trustee shall have no responsibility, obligation or
liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Series of Securities represented by
the Global Security to any Person having any ownership interest in such Global
Security or to any of the Depository's participating organizations or (z) any
payment made on account of any beneficial ownership interest in such Global
Security.
(b) If any Security of a Series is issuable in the form of one or more
Global Security or Securities, each such Global Security may provide that it
shall represent the aggregate amount of Outstanding Securities of such Series
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities of such Series represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount of Outstanding Securities of a Series represented
thereby shall be made by the Trustee and in such manner as shall be specified on
such Global Security. Any instructions by the Corporation with respect to a
Global Security, after its initial issuance, shall be in writing but need not
comply with Section 13.3 of this Indenture.
(c) Each Depository designated pursuant to the provisions of Section
2.1 of this Indenture for a Global Security must, at the time of its designation
and at all times while it serves as a depositary, be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation. If at any time the Depository for the
Securities of a Series notifies the Corporation that it is unwilling or unable
to continue as Depository for the Securities of such Series or if at any time
the
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Depository for the Securities of such Series shall no longer be eligible under
this Section 2.9, the Corporation shall appoint a successor Depository with
respect to the Securities of such Series. If a successor Depository for the
Securities of such Series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or learns of such ineligibility, the
Corporation shall execute, and the Corporation shall direct the Trustee to
authenticate and deliver, definitive Securities of such Series in authorized
denominations in exchange for the Global Security or Securities. Upon receipt of
such direction, the Trustee shall thereupon authenticate and deliver the
definitive Securities of such Series in the same aggregate principal amount as
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities, in accordance with the provisions of subsection
(e) of this Section 2.9, without any further corporate action by the
Corporation.
(d) The Corporation may at any time and in its sole discretion
determine that the Securities of any Series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, the Corporation will execute and upon receipt of a
written order from the Corporation, the Trustee shall thereupon authenticate and
deliver Securities of such Series in definitive form and in authorized
denominations in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities, in accordance with the provisions of subsection
(e) of this Section 2.9 without any further corporate action by the Corporation.
(e) Upon any exchange hereunder of the Global Security or Securities
for Securities in definitive form, such Global Security or Securities shall be
canceled by the Trustee. Securities issued hereunder in exchange for the Global
Security or Securities shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Securities in
exchange for the Global Security or Securities to the persons in whose name such
definitive Securities have been registered in accordance with the directions of
the Depository.
ARTICLE 3
REDEMPTION OF SECURITIES
SECTION 3.1. REDEMPTION OF SECURITIES. Securities of any Series may be
made subject to redemption prior to their Stated Maturity, as a whole or in
part, at such time or times, upon payment of the principal amount thereof plus
such premium or premiums, if any, as shall be set forth in the resolution of the
Board of Directors or the Supplemental Indenture relating to such Series.
SECTION 3.2. NOTICE OF REDEMPTION. In all cases other than redemption
at the option of the Holders of Securities, notice of redemption shall be
mailed, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Person in whose name any
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Security called for redemption is registered on the Register as of the date of
such notice, but neither a failure to give notice by mail nor any defect in any
notice so mailed shall affect the validity of the proceedings for such
redemption. Each notice of redemption shall state the Redemption Date, the
Redemption Price, the place of redemption, the principal amount and, if less
than all, the distinctive numbers of the Securities to be redeemed and shall
also state that the interest on the Securities in such notice designated for
redemption shall cease to accrue from and after such Redemption Date.
Notice of redemption of Securities may be given by the Corporation or,
at the option of the Corporation, by the Trustee on behalf of the Corporation.
Upon receipt of any direction to give notice, the Trustee shall immediately give
such notice. The Trustee may rely upon such direction that all conditions
precedent to the giving of such direction have been complied with or done.
SECTION 3.3. SELECTION OF SECURITIES FOR REDEMPTION. Whenever provision
is made for the redemption of any Series of Securities or portion thereof and
less than all of the Securities of such Series or portion thereof are called for
redemption, the Trustee shall select the Securities to be redeemed, from the
Outstanding Securities of such Series or portion thereof not previously called
for redemption, in any manner which the Trustee deems fair and appropriate. For
the purpose of any such selection, the Trustee shall assign a separate number
for each $1,000 principal amount of each Security of a denomination of more than
$1,000 except that if the Securities of any Series are denominated in a currency
other than United States Dollars, the Trustee shall assign a separate number for
each principal amount equal to the minimum denomination of each Security of such
Series of a denomination greater than such minimum denomination.
SECTION 3.4. PARTIAL REDEMPTION OF REGISTERED SECURITY. Upon surrender
of any registered Security (including any Global Security) to be redeemed in
part only, the Corporation shall execute and the Trustee shall authenticate and
deliver to the registered owner thereof, without service charge, a new Security
or Securities (or in the case of a Global Security, a new Global Security) of
the same Series and maturity and of authorized denomination or denominations as
requested by such registered owners, in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 3.5. EFFECT OF REDEMPTION. If notice of redemption shall have
been duly given as provided in Section 3.2, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place or places stated in such notice at the
Redemption Price specified in such notice, and on and after such Redemption Date
(unless the Corporation shall default in the payment of such Securities at the
applicable Redemption Price) such Securities or portions of Securities shall
cease to bear interest, and such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities except
the right to receive the Redemption Price thereof and any unpaid interest
accrued to the Redemption Date. Upon presentation and surrender of such
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Securities at said place of payment in said notice specified, the said
Securities or portions thereof shall be paid and redeemed by the Corporation at
the applicable Redemption Price, together with any interest accrued to the
Redemption Date; PROVIDED, HOWEVER, that any regular payment of interest
becoming due on any Securities on the Redemption Date shall be payable to the
registered owners of such Securities as of the Relevant Record Date as provided
in Article Two hereof. Upon presentation of any Security which is redeemed in
part only, the Corporation shall execute a new Security and the Trustee shall
authenticate and deliver at the expense of the Corporation a new Security of the
same Series of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof shall, to the extent
permitted by law, bear interest from the date fixed for redemption at the rate
borne by the Security, or, in the case of a Security which does not bear
interest, at the rate of interest set forth therefor in the Security, in either
case until paid.
ARTICLE 4
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 4.1. PAYMENT OF PRINCIPAL OF AND INTEREST ON SECURITIES. The
Corporation covenants that it will duly and punctually pay or cause to be paid
the principal of and any interest and premium on each of the Securities in
accordance with the terms of the Securities and this Indenture. Except with
respect to any Global Securities, if the Securities of any Series bear interest,
each installment of interest on the Securities of such Series may, at the option
of the Corporation, be paid by mailing a check or checks for such interest
payable to the Person entitled thereto pursuant to Section 2.3 to the address of
such Person as it appears on the Register of the Securities of such Series on
the applicable Record Date for such interest payment.
SECTION 4.2. CORPORATE EXISTENCE OF THE CORPORATION; CONSOLIDATION,
MERGER, SALE OR TRANSFER. The Corporation covenants that so long as any of the
Securities are Outstanding, it will maintain its existence, will not dissolve,
sell or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Corporation
may, without violating the covenants in this Section 4.2 contained, consolidate
with or merge into another entity or permit one or more other entities to
consolidate with or merge into it, or sell or otherwise transfer to another
entity all or substantially all of its assets as an entirety and thereafter
dissolve, if the surviving, resulting or transferee entity, as the case may be,
(i) shall be organized and existing under the laws of one of the States of the
United States of America, (ii) assumes, if such entity is not the Corporation,
all of the obligations of the Corporation hereunder and (iii) is not, after such
transaction, otherwise in default under any provisions hereof.
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SECTION 4.3. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the
Securities shall remain Outstanding, the Corporation covenants that it will
maintain an office or agency in either The City of New York, State of New York,
or the City and County of San Francisco, State of California, where the
Securities may be presented for registration, exchange and transfer as in this
Indenture provided, and where notices and demands to or upon the Corporation in
respect of the Securities or of this Indenture may be served, and where the
Securities may be presented for payment. In case the Corporation shall designate
and maintain some office or agency other than a previously designated office or
agency, it shall give the Trustee notice thereof. In case the Corporation shall
fail to maintain any such office or agency or shall fail to give such notice of
the location or of any change in the location thereof to the Trustee,
presentations and demands may be made and notices may be served at the principal
office of the Trustee.
In addition to such office or agency, the Corporation may from time to
time constitute and appoint one or more other offices or agencies for such
purposes with respect to Securities of any Series, and one or more paying agents
for the payment of Securities of any Series, in such cities or in one or more
other cities, and may from time to time rescind such appointments, as the
Corporation may deem desirable or expedient, and as to which the Corporation has
notified the Trustee.
SECTION 4.4. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Corporation, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee with respect to the
Outstanding Securities.
SECTION 4.5. DUTIES OF PAYING AGENT.
(a) If the Corporation shall appoint a Paying Agent other than the
Trustee with respect to Securities of any Series, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.5 and
Section 11.5,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of or interest, if any, on the Securities
of such Series (whether such sums have been paid to it by the
Corporation or by any other obligor on the Securities of such Series)
in trust for the benefit of the Holders of the Securities entitled to
such principal or interest and will notify the Trustee of the receipt
of sums to be so held,
(2) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Securities of such Series)
to make any payment of the principal of or interest on the Securities
of such Series when the same shall be due and payable, and
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(3) that it will at any time during the continuance of any
Event of Default, upon the written request of the Trustee, deliver to
the Trustee all sums so held in trust by it.
(b) Whenever the Corporation shall have one or more Paying Agents with
respect to the Securities of any Series, it will, prior to each due date of the
principal of or any interest on the Securities of such Series, deposit with a
Paying Agent of such Series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Holders of
Securities entitled to such principal or interest, and (unless such Paying Agent
is the Trustee) the Corporation will promptly notify the Trustee of its action
or failure so to act.
(c) If the Corporation shall act as its own Paying Agent with respect
to the Securities of any Series, it will, on or before each Stated Maturity of
the principal of or any interest on the Securities of such Series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such Series, a sum sufficient to pay such principal and any interest so becoming
due and will notify the Trustee of such action, or any failure by it or any
other obligor on the Securities of such Series to take such action and will at
any time during the continuance of any Event of Default, upon the written
request of the Trustee, deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section 4.5 to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all Series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for such Series by it, or any Paying Agent
hereunder, as required by this Section 4.5, and such sums are to be held by the
Trustee upon the trust herein contained.
SECTION 4.6. NOTICE OF DEFAULT. The Corporation covenants that, as soon
as is practicable, the Corporation will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Corporation proposes to take with respect
thereto.
ARTICLE 5
SECURITYHOLDERS' LISTS AND REPORTS
BY THE CORPORATION AND THE TRUSTEE
SECTION 5.1. CORPORATION TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SECURITYHOLDERS. The Corporation will furnish or cause to be
furnished to the Trustee, not less than 45 days nor more than 60 days after each
(month and day) specified as an Interest Payment Date for the Securities of the
first Series issued under this Indenture
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(whether or not any Securities of that Series are then Outstanding), but in no
event less frequently than semiannually, and at such other times as the Trustee
may request in writing, within 30 days after receipt by the Corporation of any
such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Corporation,
or any of its Paying Agents other than the Trustee, as to the names and
addresses of the Holders of Securities, obtained since the date as of which the
next previous list, if any, was furnished, EXCLUDING from any such list the
names and addresses received by the Trustee in its capacity as registrar (if so
acting). Any such list may be dated as of a date not more than 15 days prior to
the time such information is furnished and need not include information received
after such date.
SECTION 5.2. PRESERVATION OF INFORMATION; COMMUNICATION TO
SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Securities of each Series
(1) contained in the most recent list furnished to it as provided in Section
5.1, (2) received by the Trustee in the capacity of Paying Agent or registrar
(if so acting) and (3) filed with the Trustee within the two preceding years as
provided for in Section 5.4(c). The Trustee may destroy any list furnished to it
as provided in Section 5.1 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of any Series or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.2 or
(2) inform such applicants as to the approximate number of Holders
of Securities of such Series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the Holders of Securities of such Series, or all Securities, as
the case may be, whose name and address
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appear in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 5.2, a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such Series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of the Securities, by receiving and holding
the same, agrees with the Corporation and the Trustee that neither the
Corporation nor the Trustee nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 5.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
SECTION 5.3. REPORTS BY CORPORATION.
(a) The Corporation covenants and agrees to file with the Trustee
within 15 days after the Corporation is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Corporation may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or, if the Corporation
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Corporation covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to
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compliance by the Corporation with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.
(c) The Corporation covenants and agrees to transmit to the Holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.4 with respect
to reports pursuant to subsection (a) of said Section 5.4, such summaries of any
information, documents and reports required to be filed by the Corporation
pursuant to subsections (a) and (b) of this Section 5.3 as may be required by
rules and regulations prescribed from time to time by the Commission.
(d) The Corporation and any other obligor on the Securities each
covenant and agree to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Corporation's
compliance with all conditions and covenants of this Indenture (which compliance
shall be determined without regard to any period of grace or requirement of
notice as provided in this Indenture). Such certificates need not comply with
Section 13.3 of this Indenture.
SECTION 5.4. REPORTS BY TRUSTEE.
(a) On or before the first September 15th following the date of
execution of this Indenture, and on or before September 15 in every year
thereafter, if and so long as any Securities are Outstanding hereunder, the
Trustee shall transmit to the Securityholders as hereinafter in this Section 5.4
provided, a brief report dated as of the August 15 immediately preceding such
September 15 with respect to any of the following events which may have occurred
within the 12 months preceding such August 15 (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.9, and its
qualifications under Section 7.8;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 7.8(d);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of any Series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to state such advances if
such advances so remaining unpaid aggregate not more than one-half of
one percent of the principal amount of the Securities of such Series
Outstanding on the date of such report;
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(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Corporation (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as
collateral security therefor, except indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4)
or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
5.4 (or if no such report has yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of any Series on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten percent or less of the principal amount of
Securities of such Series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 5.4 shall be transmitted by mail
(i) to all Holders of Securities of any Series, as the names and addresses of
such Holders shall appear upon the Register of the Securities of such Series,
(ii) to such Holders of Securities as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that purpose
and (iii) except in the case of reports pursuant to subsection (b) of this
Section 5.4 to each Holder whose name and address are preserved at the time by
the Trustee as provided in Section 5.2(a) hereof.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange upon which
the Securities of any Series are listed and also with the Commission. The
Corporation will notify the Trustee when and as the Securities of any Series
become listed on any stock exchange.
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ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. EVENTS OF DEFAULT; ACCELERATION, WAIVER OF DEFAULT AND
RESTORATION OF POSITION AND RIGHTS. The term "Event of Default" whenever used
herein with respect to any particular Series of Securities shall mean any one of
the following events:
(a) default in the payment of any installment of interest on any
Security 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
(b) default in the payment of all or any part of the principal of
or any premium on any Security of such Series as and when the same
shall become due and payable whether at maturity, by proceedings for
redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund payment
obligation relating to such Series of Securities, when and as such
obligation shall become due and payable, or
(d) failure on the part of the Corporation to observe or perform
in any material respect any other of the covenants or agreements on its
part in the Securities or in this Indenture (including any Supplemental
Indenture or pursuant to any Certified Resolution, as contemplated by
Section 2.1) specifically contained for the benefit of the Holders of
the Securities of such Series, for a period of 90 days after there has
been given, by registered or certified mail, to the Corporation by the
Trustee, or to the Corporation and the Trustee by the Holders of not
less than 25% in principal amount of the Securities of such Series and
all other Series so benefitted (all Series voting as one class) at the
time Outstanding under this Indenture a written notice specifying such
failure and stating that such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Corporation in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Corporation or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days, or
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(f) the commencement by the Corporation of a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the Corporation's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Corporation or for any substantial part of its
property, or the making by the Corporation of any general assignment
for the benefit of creditors, or its failure generally to pay its debts
as they become due or the taking by the Corporation of any corporate
action in furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Securities, then and in each
and every such case, unless the principal amount of all the Securities of each
Series as to which there is an Event of Default shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in principal
amount of the Securities of such Series then Outstanding hereunder (each such
Series voting as a separate class) by notice in writing to the Corporation (and
to the Trustee if given by Securityholders) may declare the principal amount
(or, if the Securities of any such Series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such Series) of all the Securities of such Series, together with any
accrued interest, to be due and payable immediately, and upon any such
declaration the same shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the condition
that if, at any time after the principal amount of the Securities of any one or
more Series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
moneys due shall have been obtained or entered as hereinafter provided, the
Corporation shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Securities of such Series (or
upon all the Securities, as the case may be) and the principal of any and all
Securities of such Series (or of any and all the Securities, as the case may be)
which shall have become due otherwise than by declaration (with interest on
overdue installments of interest to the extent permitted by law and on such
principal at the rate or rates of interest borne by, or prescribed therefor in
the Securities of such Series to the date of such payment or deposit) and the
amounts payable to the Trustee under Section 7.6 and any and all defaults under
the Indenture with respect to Securities of such Series (or all Securities, as
the case may be), other than the non-payment of principal of and any accrued
interest on Securities of such Series (or any Securities, as the case may be)
which shall have become due by declaration shall have been cured, remedied or
waived as provided in Section 6.9 -- then and in every such case the Holders of
a majority in principal amount of the Securities of such Series (or of all the
Securities, as the case may be) then Outstanding (such Series or all Series
voting as one class if more than one Series are so entitled), by written notice
to the Corporation and to the Trustee, may rescind and annul such declaration
and its consequences; but no such rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.
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In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Corporation, the Trustee and the Holders of the Securities of such Series (or of
all the Securities, as the case may be) shall be restored to their respective
former positions and rights hereunder, and all rights, remedies and powers of
the Corporation and the Trustee and the Holders of the Securities of such Series
(or of all the Securities, as the case may be) shall continue as though no such
proceedings had been taken.
SECTION 6.2. COVENANT OF CORPORATION TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The Corporation
covenants that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days or
(2) in case default shall be made in the payment of all or any
part of the principal of any of the Securities of any Series when the
same shall have become due and payable, whether at the Stated Maturity
of such Series or by any call for redemption or by declaration of
acceleration or otherwise or
(3) in case default shall be made in the satisfaction of any
sinking fund obligation when and as such obligation becomes due and
payable,
upon demand of the Trustee, the Corporation will pay to the Trustee, for the
benefit of the Holders of the Securities of such Series, the whole amount that
then shall have become due and payable on all such Securities of such Series for
principal (and any premium) and interest and for any overdue sinking fund
payment together with interest upon the overdue principal and installments of
interest (to the extent permitted by law) at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of such Series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expense of collection, including a reasonable compensation to the Trustee, its
agents and counsel, and any expenses or liabilities incurred, and all advances
made, by the Trustee hereunder other than through its negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as Trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or any other obligor upon
such Securities, and collect in the manner provided by law out of
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the property of the Corporation or any other obligor upon such Securities
wherever situated the moneys adjudged or decreed to be payable.
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 6.3. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Corporation or any other obligor upon the Securities or the
property of the Corporation or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any Series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Corporation for the payment of overdue principal or interest) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(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 (or, if the Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in
the terms of such Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, 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 7.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
-31-
SECTION 6.4. 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 to the fullest extent
permitted by law without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 6.5. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.3 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.6;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become due
and be unpaid, to the payment of any interest on such Securities, in
the order of the maturity of the installments of such interest, with
interest upon the overdue installments of interest (so far as permitted
by law and to the extent that such interest has been collected by the
Trustee at the rate or rates of interest borne by such Securities or
prescribed therefor therein) such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon such Securities for principal and interest, if
any, with interest on the overdue principal and any installments of
interest (so far as permitted by law and to the extent that such
interest has been collected by the Trustee) at the rate or rates of
interest borne by, or prescribed therefor in, such Securities; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate interest
to the Corporation or its successors or assigns, or to whosoever may be
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lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct.
SECTION 6.6. LIMITATION ON SUITS BY HOLDERS OF SECURITIES. No Holder of
any Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of a
continuing Event of Default, as hereinbefore provided, and unless also the
Holders of not less than 25% in principal amount of the Securities of such
Series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby (including the reasonable fees of counsel for the Trustee), and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to this Section 6.6; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the Holders of any other of such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities.For the
protection and enforcement of the provisions of this Section 6.6, each and every
Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any Holder of any Security to receive payment of the principal of and interest
on such Security on or after the respective due dates expressed in such Security
(or, in the case of redemption, on or after the date fixed for redemption), or
to institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such
Holder.
SECTION 6.7. RIGHTS AND REMEDIES CUMULATIVE. All powers and remedies
given by this Article Six to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder of any of the Securities to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.6, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders may be
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exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders. 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 6.8. 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 the provisions of Section 6.6, every right and remedy given by this
Article Six 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 6.9. CONTROL BY HOLDERS; WAIVER OF PAST DEFAULTS. The Holders
of a majority in principal amount of the Securities of all Series (voting as one
class) at the time Outstanding (determined as provided in Section 8.4) shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee; PROVIDED, HOWEVER, that, subject to Section 7.1, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in reliance upon an Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not parties to such direction, and provided
further that nothing in this Indenture shall impair the right of the Trustee to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction by the Holders.
The Corporation may set a special record date for purposes of
determining the identity of the Holders of Securities entitled to vote or
consent to any action by vote or consent authorized or permitted by this Section
6.9. Such record date shall be the later of 15 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 5.1 of this Indenture prior to such
solicitation.
The Holders of not less than a majority in principal amount of the
Securities of any Series at the time Outstanding (determined as provided in
Section 8.4) may on behalf of the Holders of all the Securities of such Series
waive any past Event of Default with respect to such Series and its consequences
(subject to Section 6.2), except a continuing Event of Default specified in
Section 6.1(a), (b) or (c), or in respect of a covenant or provision of this
Indenture which under Article Ten cannot be modified or amended without the
consent of the Holder of each Security so affected. Upon any such waiver, the
Corporation, the Trustee and the Holders of the Securities of such Series shall
be restored to their former positions and rights hereunder, respectively, and
such Event of Default shall be deemed to have been cured and not continuing for
every purpose of this Indenture; but no such waiver
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shall extend to any subsequent or other Event of Default or impair any right
consequent thereon.
SECTION 6.10. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
Series, give to the Holders of the Securities of such Series in the manner and
to the extent provided in subsection (c) of Section 5.4 with respect to reports
pursuant to subsection (a) of said Section 5.4, notice of such default known to
the Trustee unless such default shall have been cured, remedied or waived before
the giving of such notice (the term "default" for the purposes of this Section
6.10 being hereby defined to be the events specified in Section 6.1 and any
additional events specified in the terms of any Series of Securities pursuant to
Section 2.1 not including any periods of grace provided for therein, and
irrespective of the giving of written notice specified in clause (d) of Section
6.1 and in any such terms); provided, that except in the case of default in the
payment of the principal of or interest on any of the Securities of such Series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
of such Series.
SECTION 6.11. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this Indenture
agree, and each Holder of any Security by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.11 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder of
Securities of any Series, or group of such Holders, holding in the aggregate
more than ten percent in principal amount of the Securities of such Series
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or any interest or premium on any Security, on or
after the due date expressed in such Security for such interest (or in the case
of any redemption, on or after the Redemption Date).
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only
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such duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured, remedied or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, PROVIDED, HOWEVER, that:
(a) prior to the occurrence of an Event of Default and after
the curing, remedying or waving of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.9 relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of
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any of its duties hereunder or in the exercise of any of its rights or powers,
if there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 7.2. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 7.1:
(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, consent, order, approval,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties,
(b) Any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof shall be herein
specifically prescribed); and any resolution of the Board of may be
evidenced to the Trustee by a Certified Resolution,
(c) 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 accordance
with such written advice or Opinion of Counsel,
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby,
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture,
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document,
unless requested in writing so to do by the Holders of Securities
pursuant to Section 6.9; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require
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reasonable indemnity against such costs, expenses or liabilities as a
condition to such proceeding; and provided further, that nothing in
this subsection (f) shall require the Trustee to give the
Securityholders any notice other than that required by Section 6.10.
The reasonable expense of every such examination shall be paid by the
Corporation or, if paid by the Trustee, shall be reimbursed by the
Corporation upon demand,
(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 and
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
SECTION 7.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR APPLICATION OF
PROCEEDS. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Corporation, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Corporation of any of the
Securities or of the proceeds thereof.
SECTION 7.4. TRUSTEE MAY OWN SECURITIES. The Trustee, any Paying Agent,
registrar or any agent of the Corporation or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not Trustee, Paying Agent, registrar or
such other agent.
SECTION 7.5. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Moneys
held by the Trustee in trust 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
Corporation.
SECTION 7.6. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Corporation agrees to pay to the Trustee from time to time
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of any express trust), and the
Corporation will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in connection with the acceptance or administration of its trust under this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Corporation also agrees to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense
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incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Corporation under
this Section to compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold harmless the
Trustee shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of or interest or redemption premium on particular
Securities.
SECTION 7.7. RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE WHERE NO
OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in Section
7.1, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate of the Corporation delivered to the Trustee, and such Officer's
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.8. DISQUALIFICATION; CONFLICTING INTEREST.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 7.8, it shall, within 90 days after ascertaining that it
has such conflicting interest, and if the Event of Default to which such
conflicting interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-day period, the Trustee shall either
eliminate such conflicting interest or, except as otherwise provided in this
Section 7.8, resign in the manner and with the effect specified in Section 7.10,
such resignation to become effective upon the appointment of a successor trustee
and such successor's acceptance of such appointment, and the Corporation shall
take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.8, the Trustee shall, within ten
days after the expiration of such 90-day period, transmit notice of such failure
to the Securityholders in the manner and to the extent provided in subsection
(c) of Section 5.4 with respect to reports pursuant to subsection (a) of said
Section 5.4.
(c) Subject to the provisions of Section 6.11 of this Indenture, unless
the Trustee's duty to resign is stayed as provided in subsection (f) of this
Section 7.8, any Holder who has been a BONA FIDE Holder of Securities for at
least six months may, on such Holder's behalf and on behalf of all other Holders
similarly situated, petition any court of
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competent jurisdiction for the removal of such Trustee and the appointment of a
successor, if such Trustee fails after written request thereof by such Holder to
comply with the provisions of subsection (a) of this Section 7.8.
(d) For the purposes of this Section 7.8 the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any Series if an
Event of Default (exclusive of any period of grace or requirement of notice) has
occurred with respect to Securities of such Series and:
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Corporation or any other obligor on the
Securities are outstanding or is trustee for more than one outstanding
series of securities, as hereinafter defined, under a single indenture
of the Corporation or any other obligor on the Securities, unless such
other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture, PROVIDED
THAT there shall be excluded from the operation of this paragraph, this
Indenture with respect to the Securities of any other Series
Outstanding, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Corporation or any other obligor on the Securities
are outstanding, if (A) this Indenture is and such other indenture or
indentures (and all series of securities issued thereunder) are wholly
unsecured and rank equally, and such other indenture or indentures (and
such series) are hereafter qualified under the Trust Indenture Act of
1939, unless the Commission shall have found and declared by order
pursuant to subsection (b) of Section 305 or subsection (c) of Section
307 of the Trust Indenture Act of 1939, that differences exist between
the provisions of this Indenture with respect to Securities of such
Series and one or more other Series, or the provisions of this
Indenture and the provisions of such other indenture or indentures (or
such series), which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of such Series and such
other Series, or under this Indenture and such other indenture or
indentures, or (B) the Corporation shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that the trusteeship under this Indenture with respect
to Securities of such Series and such other Series, or under this
Indenture and such other indenture, is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to Securities of
such Series and such other Series, or under this Indenture and one of
such indentures,
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(2) the Trustee or any of its directors or executive officers
is an underwriter for the Corporation or any other obligor on the
Securities,
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Corporation or any other obligor on
the Securities,
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Corporation or any other obligor on the Securities, or of an
underwriter (other than the Trustee itself) for the Corporation or any
other obligor on the Securities who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Corporation or any other obligor on
the Securities, but may not be at the same time an executive officer of
both the Trustee and the Corporation or any other obligor on the
Securities; (B) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director and/or an executive officer of the Trustee and a director of
the Corporation or any other obligor on the Securities; and (C) the
Trustee may be designated by the Corporation or any other obligor on
the Securities or by an underwriter for the Corporation or any other
obligor on the Securities to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (d), to act as trustee
whether under an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Corporation or any other
obligor on the Securities or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Corporation or any
other obligor on the Securities or by any director, partner or
executive officer thereof or is beneficially owned, collectively, by
any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, (A) five percent or more of the voting securities,
or ten percent or more of any other class of security, of the
Corporation or any other obligor on the Securities, not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (B) ten
percent or more of any class of security of an underwriter for the
Corporation or any other obligor on the Securities,
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(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly or
is under direct or indirect common control with the Corporation or any
other obligor on the Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Corporation or any other obligor on the
Securities or
(9) the Trustee owns on the date of the occurrence of such
Event of Default (exclusive of any period of grace or requirement of
notice) or any anniversary thereof while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary
or INTER VIVOS trustee, guardian, committee or conservator, or in any
other similar capacity an aggregate of 25% or more of the voting
securities or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this subsection
(d). As to any such securities of which the Trustee acquired ownership
through becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the date of the occurrence of any such Event
of Default and annually in each succeeding year that the Securities or
any Series thereof remain in default, the Trustee shall make a check of
its holdings of such securities in any of the above-mentioned
capacities as of such date. If the Corporation or any other obligor on
the Securities fails to make payment in full of principal of or
interest on any of the Securities when and as the same become due and
payable and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in any of
the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (d), or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or
become a creditor of the Corporation or any other obligor on the
Securities.
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The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(d) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a Person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or Holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
(e) For the purposes of this Section 7.8:
(1) The term "underwriter" when used with reference to the
Corporation or any other obligor on the Securities shall mean every
Person who, within one year prior to the time as of which the
determination is made, has purchased from the Corporation or any other
obligor on the Securities with a view to, or has offered or sold for
the Corporation or any other obligor on the Securities in connection
with, the distribution of any security of the Corporation or any other
obligor on the Securities outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking,
or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term shall not
include a Person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are evidenced
by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any
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trust, agreement or arrangement whereby a trustee or trustees or agent
or agents for the owner or Holder of such security are presently
entitled to vote in the direction or management of the affairs of a
Person.
(5) The term "executive officer" shall mean the president,
every vice-president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and (9) of
subsection (d) of this Section 7.8, the term "security" or "securities"
shall mean any note, stock, treasury stock, bond, debenture, evidence
of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate,
pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit
for a security, fractional undivided interest in oil, gas or other
mineral rights, or, in general, any interest or instrument commonly
known as a "security" or any certificate of interest or participation
in, temporary or interim certificate for, receipt for, guarantee of, or
warrant or right to subscribe to or purchase, any of the foregoing.
(7) For the purpose of subsection (d)(1) of this Section 7.8,
the term "series of securities" or "series" means a series, class or
group of securities issuable under an indenture pursuant to whose terms
Holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately
from holders of another such series; PROVIDED, THAT "series of
securities" or "series" shall not include any series of securities
issuable under an indenture if all such series rank equally and are
wholly unsecured.
The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Corporation or any other Person referred to in this
Section 7.8 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
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(C) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) Securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) Securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and provided
further that, in the case of unsecured evidences of indebtedness,
differences in the interest rate or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Securities, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of
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the Trustee's duty to resign will not be inconsistent with the interests of
Holders of such Series of Securities. The filing of such an application shall
automatically stay the performance of the duty to resign until the Commission
orders otherwise. Any resignation of the Trustee shall become effective only
upon the appointment of a successor trustee and such successor's acceptance of
such appointment.
SECTION 7.9. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a corporation organized and doing business as a commercial bank under
the laws of the United States of America or any state thereof or of the District
of Columbia or a corporation or other Person permitted to act as a trustee by
the Commission and, in each case, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. No obligor on the Securities or Person directly or
indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.9, the Trustee
shall resign immediately in the manner and with the effect specified in this
Article Seven.
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all Series of Securities by
giving written notice of such resignation to the Corporation and by giving to
the Holders of Securities notice thereof in the manner and to the extent
provided in subsection (c) of Section 5.4 with respect to reports pursuant to
subsection (a) of Section 5.4. Upon receiving such notice of resignation and, if
the Corporation shall deem it appropriate, evidence satisfactory to it of such
mailing to the Holders, the Corporation shall promptly appoint a successor
trustee with respect to all Series of Securities or, if appropriate, the
applicable Series by written instrument executed by an authorized officer of the
Corporation, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Holder who has been a bona fide Holder of a Security or Securities for at
least six months may, subject to the provisions of Section 6.11, on such
Holder's behalf and on behalf of all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
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(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.8 after written request therefor by the
Corporation or by any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable Series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Corporation or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or 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, or
(4) the Corporation shall determine that the Trustee has
failed to perform its obligations under this Indenture in any material
respect,
then, in any such case, the Corporation may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of the
Corporation, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Securityholder who has been a bona fide Holder of a Security
or Securities of the affected Series for at least six months may, on such
Person's behalf and on behalf of all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such Series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the Securities
Outstanding (determined as provided in Section 8.4) may at any time remove the
Trustee and appoint a successor trustee by written instrument or instruments
signed by such Holders or their attorneys-in-fact duly authorized, or by the
affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
Nine), and by delivery thereof to the Trustee so removed, to the successor
trustee and to the Corporation.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Corporation and to its predecessor trustee an
instrument accepting such appointment
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hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such Series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Corporation or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 7.6, execute and deliver an instrument transferring to
such successor trustee all the rights and powers with respect to the trustee so
ceasing to act. Upon written request of any such successor trustee, the
Corporation shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 7.6.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Corporation
transmit notice of the succession of such trustee hereunder to the Holders of
Securities in the manner and to the extent provided in subsection (c) of Section
5.4 with respect to reports pursuant to subsection (a) of said Section 5.4.
SECTION 7.12. SUCCESSOR TO TRUSTEE BY MERGER, 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 of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 7.8 and eligible under the provisions of Section 7.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
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SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
(a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Corporation or any other obligor on the Securities
within three months prior to a default, as defined in subsection (c) of this
Section 7.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities for which it is acting as Trustee, and the holders of other indenture
securities (as defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period,
and valid as against the Corporation or such other obligor on the
Securities and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph
(2) of this subsection, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Corporation or such other obligor on the
Securities upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property if disposed of, subject, however, to the rights, if any,
of the Corporation or such other obligor on the Securities and their
respective other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Corporation or such
other obligor on the Securities) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a
third Person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Corporation or such
other obligor on the Securities in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State laws;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
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(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Securities for which it is acting as Trustee, and
the holders of other indenture securities in such manner that the Trustee, such
Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims
filed against the Corporation or such other obligor on the Securities in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Corporation or such other
obligor on the Securities of the funds and property in such special account and
before crediting to the respective claims of the Trustee, such Securityholders,
and the holders of other indenture securities dividends on claims filed against
the Corporation or such other obligor on the Securities in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim
in bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to
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apportion among the Trustee, such Securityholders, and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.4(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
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(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Corporation or any other obligor on the Securities; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be accorded
the following definitions:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest on any of the Securities or on
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Corporation or any other obligor on the
Securities is an "obligor" (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the Trustee
is also trustee, (B) which contains provisions substantially similar to
the provisions of subsection (a) of this Section 7.13, and (C) under
which a default exists at the time of the apportionment of the funds
and property held in said special account.
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) the term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Corporation or any other obligor on the
Securities for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or
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merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Corporation or any
other obligor on the Securities arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the Holders of a specified percentage in principal
amount of the Securities of any or all Series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in Person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
SECTION 8.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to the provisions of Sections 7.1, 7.2 and 9.5, proof of the
execution of any instrument by a Securityholder or such Holder's agent or proxy
and proof of the holding by any Person of any of the Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities of any Series (including
Global Securities) shall be proved by the Register of such Securities
of such Series, or by certificates of the Security registrar or
registrars thereof.
(c) The amount of bearer Securities held by any Person, the
numbers of such Securities and the date of such Person's holding the
same may be proved by the production of such Securities or by a
certificate in form satisfactory to the Trustee, executed by any trust
company, bank, banker or member of a national securities exchange, as
depositary.
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The Trustee shall not be bound to recognize any Person as a
Securityholder unless and until such Person's title to the Securities held by it
is proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.6.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.2 as it shall deem reasonable.
SECTION 8.3. WHO MAY BE DEEMED OWNERS OF SECURITIES. Prior to due
presentment for transfer of any Security, the Corporation, the Trustee and any
agent of the Corporation or the Trustee may deem and treat the Person in whose
name such Security shall be registered upon the Register of Securities of the
Series of which such Security is a part as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and interest, subject to Section 2.3, on such
Security and for all other purposes; and neither the Corporation nor the Trustee
nor any agent of the Corporation or the Trustee shall be affected by any notice
to the contrary. All such payments so made to any such Holder for the time
being, or upon such Holder's order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability of moneys
payable upon any such Security. Ownership of bearer Securities shall be proved
as provided in Section 8.2(c).
If the Securities of any Series are issued in the form of one or more
Global Securities, the Depository therefor may grant proxies to Persons having a
beneficial ownership in such Global Security or Securities for purposes of
voting or otherwise responding to any request for consent, waiver or other
action which the Holder of such Security is entitled to grant or take under this
Indenture and the Trustee shall accept such proxies for the purposes granted;
PROVIDED THAT neither the Trustee nor the Corporation shall have any obligation
with respect to the grant of or solicitation by the Depository of such proxies.
SECTION 8.4. SECURITIES OWNED BY THE CORPORATION OR CONTROLLED OR
CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In determining whether the
Holders of the requisite principal amount of Securities have concurred in any
demand, direction, request, notice, vote, consent, waiver or other action under
this Indenture, Securities which are owned by the Corporation or any other
obligor on the Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Corporation or
any other obligor on the Securities shall be disregarded and deemed not to be
Outstanding, provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such demand, direction, request, notice,
vote, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee assigned to its principal office knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding for the purposes of this
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Section 8.4, if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Corporation or any such other obligor.
Upon request of the Trustee, the Corporation shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Corporation to be owned or held by or for the
account of the Corporation or any other obligor on the Securities or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Corporation or any other obligor on the
Securities; and, subject to the provisions of Section 7.1, the Trustee shall be
entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 8.5. INSTRUMENTS EXECUTED BY SECURITYHOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the Holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.2, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the Holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in principal amount of the Securities of
any or all Series specified in this Indenture in connection with such action
shall be conclusively binding upon the Corporation, the Trustee and the Holders
of all of the Securities of such Series subject, however, to the provisions of
Section 7.1.
ARTICLE 9
SECURITYHOLDERS' MEETINGS
SECTION 9.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any or all Series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following
purposes:
(1) to give any notice to the Corporation or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be
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taken by Holders of Securities of any or all Series, as the case may
be, pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified principal amount of the
Securities of any or all Series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 9.2. MANNER OF CALLING MEETINGS. The Trustee may at any time
call a meeting of Securityholders to take any action specified in Section 9.1,
to be held at such time and at such place in the City of _________ or San
Francisco, California, as the Trustee shall determine. Notice of every meeting
of Securityholders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
not less than 20 nor more than 60 days prior to the date fixed for the meeting.
SECTION 9.3. CALL OF MEETING BY THE CORPORATION OR SECURITYHOLDERS. In
case at any time the Corporation pursuant to a resolution of its Board of
Directors, or the Holders of not less than ten percent in principal amount of
the Securities of any or all Series, as the case may be, then Outstanding, shall
have requested the Trustee to call a meeting of Holders of Securities of any or
all Series, as the case may be, to take any action authorized in Section 9.1 by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of such
meeting within 20 days after receipt of such request, then the Corporation or
such Holders of Securities in the amount above specified may determine the time
and place in either the City and County of San Francisco, California or The City
of ____________________ for such meeting and may call such meeting to take any
action authorized in Section 9.1, by mailing (and publishing, if required)
notice thereof as provided in Section 9.2.
SECTION 9.4. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Securityholders a Person shall (a) be a Holder of one or
more Securities with respect to which the meeting is being held; or (b) be a
Person appointed by an instrument in writing as proxy by such Holder of one or
more Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Corporation and its counsel.
SECTION 9.5. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS - ADJOURNMENT. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of
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Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities and the appointment
of any proxy shall be proved in the manner specified in Section 8.2; provided,
however, that such regulations may provide that written instruments appointing
proxies regular on their face, may be presumed valid and genuine without the
proof herein above or in said Section 8.2 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Securityholders as provided in Section 9.3, in which case the
Corporation or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.4, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Original Issue Discount Securities, such principal amount
shall be equal to such portion of the principal amount as may be specified in
the terms of such Series) of Securities held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by such Person or
instruments in writing as aforesaid duly designating such Person as the Person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from
time to time, and the meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
SECTION 9.6. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. The
vote upon any resolution submitted to any meeting of Securityholders shall be by
written ballots on which shall be subscribed the signatures of the Holders of
Securities or of their representatives by proxy and the principal amount or
amounts of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
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meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 9.2. The record
shall show the principal amount or principal amounts of the Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
copy thereof shall be delivered to the Corporation and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.7. EXERCISE OF RIGHTS OF TRUSTEE AND SECURITYHOLDERS NOT TO
BE HINDERED OR DELAYED. Nothing in this Article Nine contained shall be deemed
or construed to authorize or permit, by reason of any call of a meeting of
Securityholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrances or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any of
the provisions of this Indenture or of the Securities.
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE ENTERED
INTO WITHOUT CONSENT OF SECURITYHOLDERS. Without the consent of the Holders of
any Securities, the Corporation and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
comply with the provisions of the Trust Indenture Act of 1939 as then in effect)
for one or more of the following purposes:
(a) if deemed appropriate by the Corporation or required by
law, to evidence the succession of another corporation to the
Corporation or successive successions and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Corporation pursuant to Article Four hereof,
(b) to add to the covenants of the Corporation such further
covenants, restrictions or conditions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of all
or any Series of Securities (and if such covenants, restrictions or
conditions are to be for the benefit of less than all Series of
Securities, stating that such covenants, restrictions or conditions are
expressly being included solely for the benefit of such Series), and to
make the occurrence, or the occurrence and continuance,
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of a default in any such additional covenants, restrictions or
conditions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided, however, that in respect to any such additional covenant,
restriction or condition such Supplemental Indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default,
(c) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Securities in (i) global form or (ii) bearer form, registerable or not
registerable as to principal or principal and interest, and with or
without coupons,
(d) to change or eliminate any of the provisions of this
Indenture; PROVIDED, HOWEVER, that any such change or elimination shall
become effective only when there is no Security of any Series
Outstanding created prior to the execution of such Supplemental
Indenture which is entitled to the benefit of such provision,
(e) to establish the form or terms of Securities of any Series
as permitted by Sections 2.1 and 2.2,
(f) to appoint, at the request of the Trustee, a successor
Trustee for a particular Series of Securities to act as such pursuant
to the provisions of this Indenture and to add to or change the
provisions of this Indenture to such extent as shall be necessary to
facilitate the performance of the duties of such trustee, and
(g) to cure any ambiguity or to correct or supplement any
provisions contained herein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained herein
or in any Supplemental Indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture or any
Supplemental Indenture which shall not adversely affect the interests
of the Holders of the Securities.
SECTION 10.2. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF
SECURITIES. With the consent (evidenced as provided in Section 8.1) of the
Holders of not less than a majority in principal amount of the Securities of all
Series at the time Outstanding (determined as provided in Section 8.4) affected
by such Supplemental Indenture (voting as one class), the Corporation and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any Supplemental Indenture or of modifying in any manner
the rights of the
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Holders of the Securities of each such Series; provided, however, that no such
Supplemental Indenture shall, without the consent of the Holders of each
Outstanding Security affected thereby:
(a) Change the fixed maturity or Redemption Date of any
Security or reduce the rate of interest thereon or the method of
determining such rate of interest or extend the time of payment of
interest or reduce the principal amount (including the amount of
principal of an Original Issue Discount Security that would be due upon
declaration of acceleration of the maturity thereof pursuant to Section
6.1 hereof) thereof or reduce any premium payable upon the redemption
thereof, or change the coin or currency in which any Security or the
interest thereon is payable or impair the right to institute suit for
the enforcement of any such payment on or after the maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(b) Reduce the percentage in principal amount of the
Outstanding Securities the consent of the Holders of which is required
for any such Supplemental Indenture, or the consent of the Holders of
which 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
(c) Change the time of payment or reduce the amount of any
minimum sinking account or fund payment, or
(d) Modify any of the provisions of this Section 10.2, 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 Security affected thereby.
A Supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series 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 the consent of the Securityholders under
this Section 10.2 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Corporation and the Trustee of any
Supplemental Indenture pursuant to the provisions of this Section 10.2, the
Corporation shall mail a notice to the Holders of Registered Securities of each
Series so affected, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Corporation to mail
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such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such Supplemental Indenture.
SECTION 10.3. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any Supplemental Indenture pursuant to the provisions of this Article Ten, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Corporation and the
Holders of Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
The Trustee shall be entitled to receive, and subject to the provisions
of Section 7.1 shall be entitled to rely upon, an Opinion of Counsel as
conclusive evidence that any such Supplemental Indenture complies with the
provisions of this Article Ten and that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Corporation in the manner and subject
to any conditions specified in such Opinion of Counsel, will be valid and
binding obligations of the Corporation, except as any rights thereunder may be
limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors' rights generally and by general equity principles.
SECTION 10.4. SECURITIES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of any
Supplemental Indenture pursuant to the provisions of this Article Ten, or after
any action taken at a Securityholders' meeting pursuant to Article Nine, may
bear a notation in form approved by the Trustee as to any matter provided for in
such Supplemental Indenture or as to any action taken at any such meeting. If
the Corporation or the Trustee shall so determine, new Securities so modified as
to conform, in the opinion of the Trustee and the Corporation, to any
modification of this Indenture contained in any such Supplemental Indenture may
be prepared by the Corporation, authenticated by the Trustee and delivered in
exchange for the Securities then Outstanding.
ARTICLE 11
DISCHARGE; DEFEASANCE
SECTION 11.1. DISCHARGE OF INDENTURE. If the Corporation shall pay and
discharge or cause to be paid or discharged the entire indebtedness on all
Outstanding Securities by paying or causing to be paid the principal of
(including redemption premium, if any) and interest on the Outstanding
Securities, as and when the same become due and payable or by delivering to the
Trustee, for cancellation by it, all Outstanding Securities, and if the
Corporation shall also pay or cause to be paid all other sums payable hereunder
by it,
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thereupon, upon written request of the Corporation and upon receipt by the
Trustee of such certificates, if any, as the Trustee shall reasonably require,
to the effect that all conditions precedent to the satisfaction and discharge of
the Corporation's obligations under this Indenture have been complied with, this
Indenture shall be discharged and terminated and the Trustee shall forthwith
execute proper instruments acknowledging satisfaction of and discharging and
terminating this Indenture with respect to the Corporation's obligations
hereunder and any such other interests.
The Corporation may at any time surrender to the Trustee for
cancellation by it any Securities previously authenticated and delivered which
the Corporation may have acquired in any manner whatsoever, and such Securities,
upon such surrender and cancellation, shall be deemed to be paid and retired.
SECTION 11.2. DISCHARGE OF LIABILITY ON SECURITIES. Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities of the
kind and in the necessary amount (as provided in Section 11.4 of this Indenture)
to pay or redeem Outstanding Securities (whether upon or prior to their maturity
or the Redemption Date of such Securities, provided that, if such Securities are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three hereof provided or provision satisfactory to
the Trustee shall have been made for the giving of such notice), the obligation
of the Corporation duly and punctually to pay or cause to be paid the principal
of and any interest and premium in respect of such Securities and all liability
of the Corporation in respect of such payment shall cease, terminate and be
completely discharged and the Holders thereof shall thereafter be entitled only
to payment out of the money or securities deposited with the Trustee as
aforesaid for their payment; provided, however, that this discharge of the
Corporation's obligation so to pay and of the liability of the Corporation in
respect of such payment shall not occur unless the Corporation shall have
delivered to the Trustee an Opinion of Counsel to the effect that Holders of the
Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such discharge.
SECTION 11.3. DISCHARGE OF CERTAIN COVENANTS AND OTHER OBLIGATIONS.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section 11.4
of this Indenture) to pay or redeem Outstanding Securities of one or more Series
(whether upon or prior to their maturity or the Redemption Date of such
Securities, provided that, if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three hereof provided or provision satisfactory to the Trustee shall have been
made for the giving of such notice), all of the obligations, covenants and
agreements of the Corporation with respect to such Securities under Sections
4.2, 4.3, 4.4 and 4.5 hereof shall cease, terminate and be completely
discharged.
SECTION 11.4. DISCHARGE OF CERTAIN OBLIGATIONS UPON DEPOSIT OF MONEY OR
SECURITIES WITH TRUSTEE. The conditions for deposit of money or securities
contained in Sections 11.2 and 11.3 shall have been satisfied whenever with
respect to any Securities
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denominated in United States Dollars, the Corporation shall have deposited or
caused to be deposited irrevocably in trust with the Trustee dedicated solely to
the benefit of the Holders of such Securities:
(a) Lawful money of the United States of America in an amount
equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except that, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
The conditions for deposit of money or securities contained in Sections 11.2 and
11.3 shall have been satisfied whenever with respect to any Securities
denominated in one or more currencies or composite currency other than United
States Dollars, the Corporation shall have deposited or caused to be deposited
irrevocably in trust with the Trustee dedicated solely to the benefit of the
Holders of such Securities:
(i) Lawful money in such currency, currencies or composite
currency in which such Securities are payable and in an amount equal to
the principal amount of such Securities and all unpaid interest thereon
to maturity, except that, in the case of Securities which are to be
redeemed prior to maturity, the amount so to be deposited or held shall
be the principal amount of such Securities and interest thereon to the
Redemption Date, together with the redemption premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Securities are
payable, for which obligations the full faith and credit of the
government is pledged (which obligations are not subject to redemption
prior to maturity at the option of the issuer) or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit
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obligation by such government (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in either
case, in such amounts and maturing at such times that the proceeds of
said obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
SECTION 11.5. UNCLAIMED MONEYS. Any moneys deposited with or paid to
the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws, and the Holder of such Security
shall thereafter look only to such Persons for any payment which such Holder may
be entitled to collect and all liability of the Trustee and such Paying Agent
with respect to such moneys shall thereupon cease.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
CORPORATION EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation, either directly or through the Corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Corporation because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law
or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of such Securities.
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ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1. SUCCESSORS AND ASSIGNS OF THE CORPORATION BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Corporation shall bind its successors
and assigns, whether so expressed or not.
SECTION 13.2. NOTICES; EFFECTIVENESS. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities to or on the Corporation, or by the
Corporation or by the Holders of Securities to the Trustee or upon the
Depository by the Corporation or the Trustee may be electronically communicated
or hand delivered or sent by overnight courier, addressed to the relevant party
as provided in this Section 13.2.
All communications intended for the Corporation shall be sent to:
Providian Financial Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Treasurer
Fax Number: (415)
All communications intended for the Trustee shall be sent to:
-----------------------------
-----------------------------
-----------------------------
Attention: Corporate Trust Department
Fax Number: ( )
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 13.2.
For all purposes of this Indenture, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a Business Day in the
city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day,
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(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding
Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Corporation,
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given, made or filed, for all purposes, if given, made or filed in
writing at the Principal Office of the Trustee in accordance with the provisions
of this Section 13.2.
Any notice, request, consent or waiver by the Corporation or the Trustee upon
the Depository shall have been sufficiently given, made or filed, for all
purposes, if give or made in accordance with the provisions of this Section 13.2
at the address shown for such Depository in the Register or at such other
address as the Depository shall have provided for purposes of notice.
SECTION 13.3. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any request or
application by the Corporation to the Trustee to take any action under any of
the provisions of this Indenture, the Corporation shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
Section 5.3(d)) shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Corporation
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
such certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Corporation stating that the
information with respect to such
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factual matters is in the possession of the Corporation, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which such Person's certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Corporation
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.4. DAYS ON WHICH PAYMENT TO BE MADE, NOTICE GIVEN OR OTHER
ACTION TAKEN. If any date on which a payment is to be made, notice given or
other action taken hereunder is a Saturday, Sunday or legal holiday in the state
in which the payment, notice or other action is to be made, given or taken, then
such payment, notice or other action shall be made, given or taken on the next
succeeding Business Day in such state, and in the case of any payment, no
interest shall accrue for the delay.
SECTION 13.5. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 13.6. GOVERNING LAW. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE.
SECTION 13.7. PROVISIONS OF THE INDENTURE AND SECURITIES FOR THE SOLE
BENEFIT OF THE PARTIES AND THE SECURITYHOLDERS. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to give any
Person, other than the parties hereto and the Holders of the Securities, any
legal or equitable right, remedy or claim under or in respect of this Indenture,
or under any covenant, condition and provision herein contained; all its
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the Holders of the Securities.
SECTION 13.8. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
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____________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
IN WITNESS WHEREOF, PROVIDIAN FINANCIAL CORPORATION has
caused this Indenture to be signed by its Chairman of the Board or any
Vice-Chairmen of the Board or one of its Vice-Presidents and
____________________ has caused this Indenture to be signed and acknowledged by
one of its _______________ and to be signed and acknowledged by one of its
Assistant Secretaries, all as of the day and year first written above.
PROVIDIAN FINANCIAL CORPORATION
By
-------------------------------------
____________________, as Trustee
By
-------------------------------------
By
-------------------------------------
Assistant Secretary
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