1
EXHIBIT 4.1
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UAL CORPORATION, Issuer
to
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
____________
INDENTURE
Dated as of ___________, 1996
____________
Providing for Issuance of
Junior Subordinated Debt Securities in Series
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2
TABLE OF CONTENTS
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Page
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ARTICLE 1 - Definitions and Other Provisions of
General Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.3. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.4. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.5. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.6. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.7. Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.8. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.9. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.13. Trustee to Establish Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.14. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 2 - Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.1. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.2. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.4. Form of Legend for Securities in Global Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 3 - The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.2. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.3. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.4. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.5. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . 31
3.6. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.7. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.8. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.9. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.11. Currency and Manner of Payment in Respect of Securities . . . . . . . . . . . . . . . . . . . . . . 40
3.12. Appointment and Resignation of Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 4 - Satisfaction, Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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4.1. Termination of Company's Obligations Under the Indenture . . . . . . . . . . . . . . . . . . . . . . . . 45
4.2. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.3. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance or Covenant Defeasance . . 47
4.4. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.5. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.6. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.7. Deposited Money and Government Obligations to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 51
4.8. Transfers and Distribution at Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 5 - Defaults and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.2. Acceleration; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.3. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 54
5.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.5. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . . 55
5.6. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.7. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.8. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.9. Limitation on Suits by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5.10. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.11. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.12. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.13. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.15. Action Respecting Securities Held in UAL
Corporation Capital Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 6 - The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.1. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.3. Trustee May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.4. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.5. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.6. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.7. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.8. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.9. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.10. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.12. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.13. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . 67
6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
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6.15. Trustee's Application for Instructions from the Company . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 7 - Consolidation, Merger or Sale by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 8 - Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.1. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.2. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
8.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.4. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.5. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.6. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE 9 - Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.1. Payment of Principal, Premium, If Any, and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.3. Money for Securities to Be Held in Trust; Unclaimed Money . . . . . . . . . . . . . . . . . . . . . . . . 76
9.4. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.6. Reports by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9.7. Annual Review Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.8. Limitation on Dividends and Capital Stock Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9.9. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 10 - Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.1. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.2. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.3. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
10.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
10.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
10.6. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.7. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE 11 - Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.1. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.2. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.3. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE 12 - Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.1. Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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12.2. Company Not to Make Payments with Respect to Securities in Certain Circumstances;
Limitations on Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
12.3. Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution,
Liquidation or Reorganization
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
12.4. Holders to Be Subrogated to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 89
12.5. Obligation of the Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
12.6. Knowledge of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
12.7. Application by Trustee of Moneys Deposited
with It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
12.8. Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness . . . . 91
12.9. Holders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . . . . . . . . . . . 91
12.10. Right of Trustee to Hold Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
12.11. Article 12 Not to Prevent Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
12.12. Paying Agents Other Than the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
12.13. Trustee's Compensation Not Prejudiced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
12.14. Trust Moneys Not Subordinated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
12.15. Reliance on Judicial Order or Certificate of Liquidating Agent. . . . . . . . . . . . . . . . . . . . . . . 93
12.16. Trustee Not Fiduciary for Holders or Senior Indebtedness of the Company . . . . . . . . . . . . . . . . . . 93
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Reconciliation and tie between Indenture dated as of April 3, 1995 and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
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310(a)(1) . . . . . . . . . . . . . . . . . . . 6.12
(a)(2) . . . . . . . . . . . . . . . . . . . 6.12
(a)(3) . . . . . . . . . . . . . . . . . . . TIA
(a)(4) . . . . . . . . . . . . . . . . . . . Not applicable
(a)(5) . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . 6.10; 6.12;
TIA
311(a) . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . TIA
312(a) . . . . . . . . . . . . . . . . . . . . 6.8
(b) . . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . . TIA
313(a) . . . . . . . . . . . . . . . . . . . . 6.7; TIA
(b) . . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . . TIA
(d) . . . . . . . . . . . . . . . . . . . . TIA
314(a) . . . . . . . . . . . . . . . . . . . . 9.6; 9.7; TIA
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . TIA
(f) . . . . . . . . . . . . . . . . . . . . TIA
315(a) . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . 6.6
(c) . . . . . . . . . . . . . . . . . . . . TIA
(d)(1) . . . . . . . . . . . . . . . . . . . TIA
(d)(2) . . . . . . . . . . . . . . . . . . . TIA
(d)(3) . . . . . . . . . . . . . . . . . . . TIA
(e) . . . . . . . . . . . . . . . . . . . . TIA
316(a)(last sentence) . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . . 5.2; 5.8
(a)(1)(B) . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . 5.9; 5.10
(c) . . . . . . . . . . . . . . . . . . . . TIA
317(a)(1) . . . . . . . . . . . . . . . . . . . 5.3
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(a)(2) . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . 9.3
318(a) . . . . . . . . . . . . . . . . . . 1.11
(b) . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . 1.11; TIA
--------------------------
This reconciliation and tie section does not constitute part of the Xxxxxxxxx.
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XXXXXXXXX, dated as of _____________, 1996, among UAL
CORPORATION, a Delaware corporation (the "Company"), as issuer, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, as Trustee (the
"Trustee").
Recitals
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether
9
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community
of such place. Whenever successive publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided
herein) on any Business Day and in the same or different Authorized Newspapers.
"Bearer Security" means any Security in the form (to the
extent applicable thereto) established pursuant to Section 2.1 which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, the Executive Committee or any other duly authorized committee
thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Corporate Secretary or an Assistant Secretary of
the Company, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"Capital Lease" means any lease obligation of a person
incurred with respect to real property or equipment acquired or leased by such
person and used in its business that is required to be recorded on its balance
sheet as a capitalized lease in accordance with generally accepted accounting
principles consistently applied as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the
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Securities Exchange Act of 1934, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Securities" shall mean the common undivided beneficial
interests in the assets of the applicable UAL Corporation Capital Trust.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until one or more successor corporations shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter means such successors.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by the Chairman of
the Board, the President, any Executive Vice President or any Senior Vice
President, signing alone, by any Vice President signing together with the
Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant
Secretary of the Company, or, with respect to Sections 3.3, 3.4, 3.5 and 6.1,
any other employee of the Company named in an Officers' Certificate delivered
to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit other than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate trust Administration, except that, with respect to
presentation of the Securities for payment or registration of transfers or
exchanges and the location of the register, such term means the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which at the date of original execution of this
Indenture is located as c/o First Chicago Trust Company of Xxx Xxxx, 00 Xxxx
Xxxxxx-0xx Floor-Window 2, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies
and business trusts.
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"coupon" means any interest coupon appertaining to a Bearer
Security.
"Declaration of Trust" shall mean the Declaration of Trust of
the UAL Corporation Capital Trust, if any, specified in the applicable Board
Resolution or supplemental indenture establishing a particular series of
Securities pursuant to Section 3.01 hereof.
"Default" means any event which is, or after notice or passage
of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the coin or currency of the United States as at
the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Rate Agent", when used with respect to Securities of
or within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 or Section 3.12.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis
of a Security having the lowest denomination principal amount in the relevant
currency or currency unit), payable with respect to a Security of any series on
the basis of such Market Exchange Rate or the
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applicable bid quotation, signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Flight Equipment" means:
(a) aircraft of all types and classes used in transportation
and incidental services, together with all aircraft
instruments, appurtenances parts and fixtures comprising such
aircraft;
(b) aircraft engines of all types and classes used in
transportation and incidental services, together with all
accessories, appurtenances, parts and fixtures comprising such
aircraft engines;
(c) aircraft communication equipment of all types and
classes used in transportation and incidental services,
including radio, radar, radiophone and other aircraft
communication apparatus, together with all accessories,
appurtenances, parts and fixtures comprising such aircraft
communication equipment;
(d) miscellaneous flight equipment of all types and
classes (including miscellaneous crew flight equipment) used
in transportation and incidental services; and
(e) spare parts, accessories and assemblies held for use
in or repair of the items described in (a) through (d) above.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if
specified as contemplated by Section 3.1, such government which issued the
foreign currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
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custodian for the account of the holder of a depositary receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Government Obligation
evidenced by such depositary receipt.
"Holder" means, with respect to a Bearer Security or coupon, a
bearer thereof and, with respect to a Registered Security, a person in whose
name a Security is registered on the Register.
"Indebtedness" of any Person means, without duplication, the
principal of, and premium, if any, and accrued and unpaid interest (including
post-petition interest) on any obligation, whether outstanding on the date
hereof or thereafter created, incurred or assumed, which is (i) indebtedness of
such Person for money borrowed, (ii) Indebtedness Guarantees by such Person of
indebtedness for money borrowed by any other Person, (iii) indebtedness
evidenced by notes, debentures, bonds or other instruments of indebtedness for
payment of which such Person is responsible or liable, (iv) obligations for the
reimbursement of any obligor on any letter of credit, bankers' acceptance or
similar credit transaction, (v) obligations of such Person under Capital Leases
and Flight Equipment leases (the amount of the Company's obligation under such
Flight Equipment leases to be computed in accordance with Statement of
Financial Accounting Standards No. 13 as if such Flight Equipment leases were
Capital Leases), (vi) obligations (net of counterparty payments) under interest
rate and currency swaps, caps, collars, options, forward or spot contracts or
similar arrangements or with respect to foreign currency xxxxxx, and (vii)
commitment and other bank financing fees under contractual obligations
associated with bank debt; provided, however, that Indebtedness shall not
include amounts owed to trade creditors in the ordinary course of business.
"Indebtedness Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment or performance thereof (or payment of damages
in the event of nonperformance) or to protect such obligee against loss in
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respect thereof (in whole or in part); provided, however, that the terms
Indebtedness Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The term "Indebtedness Guarantee" used as
a verb has a corresponding meaning.
"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and terms
(but not defined terms established in an Officers' Certificate or a Board
Resolution) of particular series of Securities established as contemplated by
Section 2.1 and Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after maturity, means
interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and Dollars
or such Foreign Currency calculated by the method specified pursuant to Section
3.1 for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion
of one Foreign Currency into Dollars or another Foreign Currency, the spot rate
at noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.1, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in New
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York City, London or other principal market for such currency or currency unit
in question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there
is more than one market for dealing in any currency or currency unit by reason
of foreign exchange regulations or otherwise, the market to be used in respect
of such currency or currency unit shall be that upon which a nonresident issuer
of securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the
President, any Executive Vice President, any Senior Vice President, any Vice
President or the Corporate Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, any Executive Vice President or any
Senior Vice President of the Company, signing alone, or by any Vice President
signing together with the Corporate Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel,
who may be (a) the senior attorney employed by the Company, (b) Xxxxx, Xxxxx &
Xxxxx or (c) other counsel designated by the Company and who shall be
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent
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(other than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities and any coupons appertaining thereto
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provisions therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (w) above) of such Security, (y) the principal amount of any
Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 3.1, and (z) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the
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Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest, if any, on any Securities
on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining
the rate or rates of interest thereon, if any, the Stated Maturity or Stated
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, with respect thereto, and any other terms specified as
contemplated by Section 3.1 with respect thereto, are to be determined by the
Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where, subject to the
provisions of Section 9.2, the principal of, premium, if any, and interest, if
any, on such Securities are payable as specified as contemplated by Section
3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Securities" means the preferred undivided
beneficial interests in the assets of the applicable UAL Corporation Capital
Trust.
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"Redeemable Stock" means, with respect to any person, any
equity security of such person that by its terms or otherwise (i) is required
to be redeemed prior to the maturity of any of the Securities, or is redeemable
at the option of the holder thereof at any time prior to the maturity of any of
the Securities, and (ii) creates a financial obligation on such person if any
required or optional redemption obligation is not timely satisfied.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form (to the
extent applicable thereto) established pursuant to Section 2.1 which is
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any senior vice
president, any vice president, any assistant vice president, the secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer, the controller, any assistant
controller, or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, and also means, with respect to a particular
corporate trust matter, any other officer to whom such corporate trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Security Exchange," when used with respect to the Securities
of any series which are held as trust assets of a UAL Corporation Capital Trust
pursuant to the Declaration of Trust of such UAL Corporation Capital Trust,
shall mean the distribution
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of the Securities of such series by such UAL Corporation Capital Trust in
exchange for the Preferred Securities and Common Securities of such UAL
Corporation Capital Trust in dissolution of such UAL Corporation Capital Trust
pursuant to the Declaration of Trust of such UAL Corporation Capital Trust.
"Senior Indebtedness of the Company" means all Indebtedness of
the Company (other than the Securities), unless such Indebtedness, by its terms
or the terms of the instrument creating or evidencing it, is subordinate in
right of payment to or pari passu with the Securities, and, in particular, the
Securities shall rank pari passu with all other debt securities and guarantees
in respect of those debt securities issued to any other UAL Corporation Capital
Trust or any indebtedness of the Company to a Subsidiary.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any issue means a date fixed by the
Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest, if any, thereon, means the
date specified in such Security or in a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest, if any, is due and payable.
"Subsidiary" means any corporation of which the Company at the
time owns or controls, directly or indirectly, more than 50% of the shares of
outstanding stock having general voting power under ordinary circumstances to
elect a majority of the Board of Directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in effect on the date of this Indenture, except as provided in
Section 8.3.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"UAL Corporation Capital Trust" shall mean any statutory
business trust created under the laws of the State of Delaware specified in the
applicable Board Resolution or
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supplemental indenture establishing a particular series of Securities pursuant
to Section 3.1 hereof.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen,
national or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, calculated by
the Company at the time of issuance of a series of Securities or, if
applicable, at the most recent determination of interest on such series, in
accordance with accepted financial practice.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.11(d)
"Conversion Date" 3.11(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.11(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.7(c)
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating
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to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3, 3.3 and 9.7) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate executed by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered Security
or (iv) such Bearer Security is no longer outstanding. The ownership of Bearer
Securities may
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also be proved in any other reasonable manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be
proved by the Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to an Officers' Certificate
delivered to the Trustee, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of clause (a) of this Section 1.4 not later than six months after
the record date.
Section 1.5. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-
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class postage prepaid, to the Company addressed to it at UAL Corporation,
X.X. Xxx 00000, Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided
or otherwise agreed to by a Holder) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Register, within the time prescribed for the giving of such
notice and (ii) if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be sufficiently given (unless
otherwise herein or in the terms of such Bearer Securities expressly provided)
if published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated by Section
3.1(5).
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where
notice is given to Holders by publication, neither the failure to publish such
notice, nor any defect in any notice so published, shall affect the sufficiency
of such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein required,
then such publication in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
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Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
Section 1.7. Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Any act or proceeding that is required or permitted by any provision of
this Indenture and that is authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any
corporation that shall at the time be the successor or assign of the Company.
Section 1.9. Separability. In case any provision of this Indenture or the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior
Indebtedness of the Company, and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which
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specifically states that such provision shall apply in lieu of this Section)
payment of principal, premium, if any, or interest, if any, need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on such date; provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date,
sinking fund payment date, Stated Maturity or Maturity, as the case may be.
Section 1.13. Trustee to Establish Record Dates. The Trustee shall
fix a record date for the purpose of determining the Holders entitled to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date, and
only such Holders, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be valid or effective if made, given or taken more than 90 days after such
record date.
Section 1.14. No Recourse Against Others. No recourse for the
payment of the principal of, premium, if any, or interest, if any, on the
Securities, or for any claim based on the Securities or this Indenture, and no
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or any indenture supplemental thereto or in any Security or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
of a Security by each Holder and as part of the consideration for the issue of
such Security, expressly waived and released.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form
(including global form) as shall be established by delivery to the Trustee of an
Officers' Certificate or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted
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by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of the Securities and coupons,
if any. If temporary Securities of any series are issued as permitted by Section
3.4, the form thereof also shall be established as provided in the preceding
sentence. If the forms of Securities and coupons, if any, of any series are
established by an Officers' Certificate, such Officers' Certificate shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: The First National Bank of Chicago,
as Trustee
By:________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If securities of or within a
series are issuable in whole or in part in temporary or permanent global form,
as specified as contemplated by Section 3.1, then, notwithstanding clause (8) of
Section 3.1(b) and the provisions of Section 3.2, any such Security shall
represent such of the outstanding securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount
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of Outstanding Securities represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section
3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any
Security in global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Section 2.4. Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form, or such other form as deemed
necessary or desirable by the Company and specified in a Company Order delivered
to the Trustee:
This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. Unless and until it is exchanged in whole or in
part for Securities in certificated form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
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ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established and
(subject to Section 3.3) set forth, or determined in the manner provided, in an
Officers' Certificate and a Board Resolution of the Company, or one or more
indentures supplemental hereto:
(1) the title of the Securities of the series (which
title shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to (i) Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 8.6, or 10.7 and (ii) any Securities which,
pursuant to the last paragraph of Section 3.3, are deemed never to
have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of the
Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method of calculating such
rate or rates of interest, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest
shall be payable and any provision for the extension or deferral
thereof and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on
any Interest Payment Date;
(5) the place or places where, subject to the provisions
of Section 9.2, the principal of, premium, if any, and interest, if
any, on Securities of the series shall be payable;
(6) the period or periods within which, the price or
prices at which, the currency or currencies (including currency units)
in which, and the other terms and conditions
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upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than as provided in
Section 10.3, the manner in which the particular Securities of such
series (if less than all Securities of such series are to be redeemed)
are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and $100,000, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be
denominated, the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.11, and whether the Securities of the series may be
satisfied and discharged other than as provided in Article 4;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency units) other than that in which such Securities
are denominated or designated to be payable, the currency or
currencies (including currency units) in which such payments are to be
made, the terms and conditions of such payments and the manner in
which the exchange rate with respect to such payments shall be
determined, the particular provisions applicable thereto in accordance
with, in addition to, or in lieu of the provisions of Section 3.11,
and whether the Securities of the series may be satisfied and
discharged other than as provided in Article 4;
(11) if the amount of payments of principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies
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(including currency units) other than that in which the Securities of
the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined;
(12) if other than the principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person
to whom any interest on any Registered Security of the series shall be
payable, the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable, and the extent
to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 2.3 and Section 3.4, as applicable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default set forth in Section 5.1 or covenants of the
Company set forth in Article 9 pertaining to the Securities of the
series;
(16) under what circumstances, if any, the Company will
pay additional amounts on the Securities of that series held by a
Person who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided
in Section 3.5, the terms upon which Bearer Securities of a series may
be exchanged for Registered Securities of the same series and vice
versa;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security representing outstanding
Securities of the series shall be dated if other
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than the date of original issuance of the first Security of the series
to be issued;
(19) the applicability, if any, to the Securities of or
within the series of Sections 4.4 and 4.5, or such other means of
defeasance or covenant defeasance as may be specified for the
Securities and coupons, if any, of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations referred to in the
definition of such term which are not obligations of the United States
or an agency or instrumentality of the United States;
(20) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(21) any terms which may be related to warrants issued by
the Company in connection with, or for the purchase of, Securities of
such series, including whether and under what circumstances the
Securities of any series may be used toward the exercise price of any
such warrants;
(22) the designation of the initial Exchange Rate Agent,
if any;
(23) whether Securities of the series shall be issued in
whole or in part in temporary or permanent global form and, if so, (i)
the initial Depositary for such global Securities and (ii) if other
than as provided in Section 3.4 or 3.5, as applicable, whether and the
circumstance under which beneficial owners of interests in any
Securities of the series in temporary or permanent global form may
exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination;
(24) whether Securities of the Series shall be convertible
into shares of common stock of the Company and the terms and
conditions upon which the Securities will be convertible, including
the conversion price, the conversion period and other conversion
provisions;
(25) if other than as provided in Article 12, the terms
and conditions under which the Securities will be subordinated to the
Senior Indebtedness of the Company; and
(26) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture), including any
terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of
Securities of the series.
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(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except as to denomination and the rate or rates of interest, if any,
and Stated Maturity, and the date from which interest, if any, shall accrue and
except as may otherwise be provided in or pursuant to an Officers' Certificate
pursuant to this Section 3.1 or in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such
series.
(d) If any of the terms of the Securities of any series
are established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company, setting forth, or
providing the manner for determining, the terms of the Securities of such
series, and an appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series shall be
delivered to the Trustee prior to the authentication and delivery thereof.
With respect to Securities of a series subject to a Periodic Offering, such
Board Resolutions or Officers' Certificates may provide general terms for
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order, or
that such terms shall be determined by the Company, or one or more of its
agents designated in the Officers' Certificate, in accordance with the Company
Order, as contemplated by the first proviso of the third paragraph of Section
3.3.
(e) Each Security issued hereunder shall provide that the
Company and, by its acceptance of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a beneficial interest in, such
Security agree that for United States federal, state and local tax purposes it
is intended that such Security constitute indebtedness.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman or
President and Chief Executive Officer and attested to by the Secretary of the
Company. The Company's seal shall be affixed to the Securities or a facsimile
of such seal
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shall be engraved, printed, or otherwise reproduced on the Securities. The
signatures of such officers on the Securities may be manual or facsimile. The
coupons, if any, of Bearer Securities shall bear the facsimile signature of the
Chairman or President and Chief Executive Officer and shall be attested by the
Secretary of the Company.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities and any coupons appertaining thereto of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and make available for delivery such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series, as such form of Company Order may be revised from
time to time.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as permitted
by Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to section
315(a) through (d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) that the forms and terms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture; and
(2) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding
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obligations of the Company, enforceable in accordance with their terms,
subject to customary exceptions;
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication of Securities of such series and that the
Opinion of Counsel above may state:
(x) that the forms of such Securities have been,
and the terms of such Securities (when established in
accordance with such procedures as may be specified from time
to time in a Company Order, all as contemplated by and in
accordance with a Board Resolution or an Officers' Certificate
pursuant to Section 3.1, as the case may be) will have been,
established in conformity with the provisions of this
Indenture; and
(y) that such Securities together with the
coupons, if any, appertaining thereto, when (1) executed by
the Company, (2) completed, authenticated and delivered by the
Trustee in accordance with this Indenture, and (3) issued by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the form and terms thereof
and the legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and other documents delivered pursuant to
Sections 2.1 and 3.1 of this Section, as applicable, at or prior to
the time of the first authentication of Securities of such series
unless and until it has received written notification that such
opinion or other documents 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 Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the
Company.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as permitted
by Sections 2.1 and 3.1, the Trustee
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shall have the right to decline to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will adversely affect the Trustee's
own rights, duties or immunities under this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. Notwithstanding the
generality of the foregoing, the Trustee will not be required to authenticate
Securities denominated in a Foreign Currency if the Trustee reasonably believes
that it would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 at or prior to the time
of the authentication of each Security of such series if such Officers'
Certificate is delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary shall enter into an agreement
with the Trustee governing the respective duties and rights of such Depositary
and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security (including a Bearer Security
represented by a temporary global Security) shall be dated as of the date
specified as contemplated by Section 3.1.
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No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until such Security is authenticated by the manual signature of one of the
authorized signatories of the Trustee or an Authenticating Agent. Such
signature upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this Indenture. Except as
permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then matured
have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute and, upon
Company Order, the Trustee shall authenticate and deliver temporary Securities
of such series which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
and form, with or without coupons, of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities
and coupons, if any. In the case of Securities of any series, such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause permanent
Securities of such series to be prepared without unreasonable delay. After
preparation of such permanent Securities, the temporary Securities shall be
exchangeable for such permanent Securities of like tenor upon surrender of the
temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall
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execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of permanent Securities of the same series of authorized
denominations and of like tenor; provided, however, that no permanent Bearer
Security shall be delivered in exchange for a temporary Registered Security;
and provided further that no permanent Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Trustee shall have received
from the person entitled to receive the definitive Bearer Security a
certificate substantially in the form approved in the Officers' Certificate
relating thereto and such delivery shall occur only outside the United States.
Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as permanent
Securities of such series except as otherwise specified as contemplated by
Section 3.1.
Section 3.5. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency to be maintained by the Company in
accordance with Section 9.2 in a Place of Payment a register (the "Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee is hereby appointed "Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and tenor.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and
of a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless
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otherwise specified as contemplated by Section 3.1, Bearer Securities may not
be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and
the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 9.2,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case any Bearer Security of any
series is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date of payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon, when due in accordance with the provisions of
this Indenture.
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Notwithstanding any other provision (other than the provisions
set forth in the seventh and eighth paragraphs of this Section) of this
Section, unless and until it is exchanged in whole or in part for Securities in
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is
not appointed by the Company within 90 days after the issuer receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 3.1 shall no longer be effective with respect to the Securities of
such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver Securities of such
series of like tenor in certificated form, in authorized denominations and in
an aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities of a series issued in global form shall no longer be
represented by such a Security or Securities in global form. In such event the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
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the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Security in global form; and (ii)
to such Depositary a new Security in global form of like tenor in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders
thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any
series that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to those of the Company, the
Registrar and the Trustee requiring such written instrument of transfer duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in connection with any registration or
transfer or exchange of Securities, other than exchanges pursuant to Section
3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening
of business 15 days before any selection for redemption of Securities of like
tenor and of the series of which such Security is a part and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Securities of like
tenor and of such series to be redeemed; (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part; or
(iii) to exchange any Bearer Security so selected for redemption, except that
such a Bearer Security may be exchanged for a Registered Security of that
series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Security with a destroyed, lost or stolen coupon and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a replacement
Registered Security, if such Holder's claim appertains to a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the destroyed, lost or stolen Bearer Security or the
Bearer Security to which such lost, destroyed or stolen coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same
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series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding with coupons corresponding
to the coupons, if any, appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupon, if any, or the destroyed, lost or stolen coupon, shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if
any, on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency maintained for such purpose pursuant to Section 9.2; provided,
however, that, at the option of the Company, interest on any series of
Registered Securities that bear interest may be paid (i) by check mailed to the
address of the Person entitled thereto as it shall appear on
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the Register of Holders of Securities of such series or (ii) to the extent
specified as contemplated by Section 3.1, by wire transfer to an account
maintained by the Person entitled thereto as specified in the Register of
Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount, if any, on Bearer
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee
in writing provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under the United States law and regulations. The interest, if any,
on any temporary Bearer Security shall be paid, as to any installment of
interest evidenced by a coupon attached thereto only upon presentation and
surrender of such coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on a
Bearer Security or coupon shall become due, the payment of the full amount so
payable at the office or offices of all the Paying Agents outside the United
States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount
in Dollars, then the Company may instruct the Trustee to make such payments at
a Paying Agent located in the United States, provided that provision for such
payment in the United States would not cause such Bearer Security to be treated
as a "registration-required obligation" under the United States law and
regulations.
(b) Unless otherwise provided as contemplated by Section
3.1, any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any interest payment date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following
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manner. The Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause (1)
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause
(2), such manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section
and Section 3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment
of any Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security
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for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.7) interest, if any, on such Registered Security and for
all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the rights of
such Depositary (or its nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation. The Registrar
and any Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Securities and coupons
surrendered for replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and shall return all such cancelled
Securities to the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation,
except as expressly permitted in the terms of Securities for any particular
series or as permitted pursuant to the terms of this Indenture.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, (i) interest on any Securities that
bear interest at a fixed rate shall be computed on the basis of a 360-day year
of twelve 30-day months and, for any period shorter than a full calendar month,
on the
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basis of the actual number of days elapsed in such period, and (ii) interest on
any Securities that bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
Section 3.11. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of, premium, if any, and
interest, if any, on any Registered or Bearer Security of such series will be
made in the currency or currencies or currency unit or units in which such
Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 3.11 may be modified or superseded pursuant to
Section 3.1 with respect to any Securities. For all purposes of this
Indenture, currency units shall include any composite currency.
(b) It may be provided pursuant to Section 3.1, with
respect to Registered Securities of any series, that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive payments of
principal of, premium, if any, or interest, if any, on such Registered
Securities in any of the currencies or currency units which may be designated
for such election by delivering to the Trustee (or the applicable Paying Agent)
a written election with signature guarantees and in the applicable form
established pursuant to Section 3.1, not later than the close of business on
the Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such currency or currency
unit, such election will remain in effect for such Holder or any transferee of
such Holder until changed by such Holder or such transferee by written notice
to the Trustee (or any applicable Paying Agent) for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date, and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article 4
or with respect to which a notice of redemption has been given by the Company).
Any Holder of any such Registered Security who shall not have delivered any
such election to the Trustee (or any applicable Paying Agent) not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant currency or currency unit as
provided in Section 3.11(a). The Trustee (or the applicable
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Paying Agent) shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities
for which Holders have made such written election.
(c) If the election referred to in paragraph (b) above
has been provided for with respect to any Registered Securities of a series
pursuant to Section 3.1, then, unless otherwise specified pursuant to Section
3.1 with respect to any such Registered Securities, not later than the fourth
Business Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written
notice specifying, in the currency or currencies or currency unit or units in
which Registered Securities of such series are payable, the respective
aggregate amounts of principal of, premium, if any, and interest, if any, on
such Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series
pursuant to Section 3.1, and if at least one Holder has made such election,
then, unless otherwise specified pursuant to Section 3.1, on the second
Business Day preceding such payment date the Company will deliver to the
Trustee (or the applicable Paying Agent) an Exchange Rate Officers' Certificate
in respect of the Dollar, Foreign Currency or Currencies, ECU or other currency
unit payments to be made on such payment date. Unless otherwise specified
pursuant to Section 3.1, the Dollar, Foreign Currency or Currencies, ECU or
other currency unit amount receivable by Holders of Registered Securities who
have elected payment in a currency or currency unit as provided in paragraph
(b) above shall be determined by the Company on the basis of the applicable
Market Exchange Rate in effect on the second Business Day (the "Valuation
Date") immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a
Foreign Currency, ECU or any other currency unit in which any of the Securities
are denominated or payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, with respect to each date for the
payment of principal of, premium, if any, and interest, if any, on the
applicable Securities denominated or payable in such Foreign Currency, ECU or
such other currency unit occurring after the last date on which such Foreign
Currency, ECU or such other currency unit was used (the "Conversion Date"), the
Dollar shall be the currency of
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payment for use on each such payment date (but such Foreign Currency, ECU or
such other currency unit that was previously the currency of payment shall, at
the Company's election, resume being the currency of payment on the first such
payment date preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer prevail). Unless
otherwise specified pursuant to Section 3.1, the Dollar amount to be paid by
the Company to the Trustee or any applicable Paying Agent and by the Trustee or
any applicable Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a Foreign Currency that is a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1,
if the Holder of a Registered Security denominated in any currency or currency
unit shall have elected to be paid in another currency or currency unit or in
other currencies as provided in paragraph (b) above, and (i) a Conversion Event
occurs with respect to any such elected currency or currency unit, such Holder
shall receive payment in the currency or currency unit in which payment would
have been made in the absence of such election and (ii) if a Conversion Event
occurs with respect to the currency or currency unit in which payment would
have been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) of this Section 3.11 (but,
subject to any contravening valid election pursuant to paragraph (b) above, the
elected payment currency or currency unit, in the case of the circumstances
described in clause (i) above, or the payment currency or currency unit in the
absence of such election, in the case of the circumstances described in clause
(ii) above, shall, at the Company's election, resume being the currency or
currency unit of payment with respect to Holders who have so elected, but only
with respect to payments on payment dates preceded by 15 Business Days during
which the circumstances which gave rise to such currency or currency unit, in
the case of the circumstances described in clause (i) above, or the Dollar, in
the case of the circumstances described in clause (ii) above, becoming the
currency or currency unit, as applicable, of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by the Exchange Rate Agent by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
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(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to Section 3.1
by which the written election referred to in Section 3.11(b) may be made.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which such
Component Currency represented in the relevant currency unit, including, but
not limited to, ECU, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified amounts of
such two or more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, ECU, a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and is continuing on
the applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be
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converted into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee (and any applicable Paying Agent) and all
Holders of Securities denominated or payable in the relevant currency,
currencies or currency units. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee of any such decision or
determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to ECU
or any other currency unit in which Securities are denominated or payable, the
Company will promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in the manner provided
in Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event the Company determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above has
occurred, the Company will similarly give written notice to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise have
any duty or obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 3.1, if and so long
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent.
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The Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant to
Section 3.11 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued currency or
currencies or currency unit or units into the applicable payment currency or
currency unit for the payment of principal, premium, if any, and interest, if
any, pursuant to Section 3.11.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and
the Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise specified
pursuant to Section 3.1, at any time there shall only be one Exchange Rate
Agent with respect to the Securities of any particular series that are
originally issued by the Company on the same date and that are initially
denominated and/or payable in the same currency or currencies or currency unit
or units).
Section 3.13. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers (in addition to the other identification
numbers printed on the Securities) in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's Obligations Under
the Indenture. Except as otherwise provided as contemplated by Section 3.1,
this Indenture shall upon Company
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Request cease to be of further effect with respect to Securities of or within
any series and any coupons appertaining thereto (except as to any surviving
rights of registration of transfer or exchange of such Securities and
replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for) and the Trustee, at the expense of the Company
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities and any coupons appertaining
thereto when
(1) either
(A) all such Securities previously authenticated
and delivered and all coupons appertaining thereto (other than
(i) such coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 3.5, (ii) such Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii)
such coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date,
surrender of which has been waived as provided in Section 10.6
and (iv) such Securities and coupons for whose payment money
has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 9.3)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or
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currency unit or units in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and
interest, if any, with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.9, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the provisions
of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. If pursuant to
Section 3.1 provision is made for either or both of (i) defeasance of the
Securities of or within a series under Section 4.4 or (ii) covenant defeasance
of the Securities of or within a series under Section 4.5, then the provisions
of such Section or Sections, as the case may be, together with the provisions
of Sections 4.6 through 4.9 inclusive, with such modifications thereto as may
be specified pursuant to Section 3.1 with respect to any Securities, shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect
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to such Securities and any coupons appertaining thereto, elect to have Section
4.4 (if applicable) or Section 4.5 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
Section 4.4. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this Section with
respect to the Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Securities and
any coupons appertaining thereto on the date the conditions set forth in
Section 4.6 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive, solely from the trust funds described in Section 4.6(a) and as more
fully set forth in such Section, payments in respect of the principal of,
premium if any, and interest, if any, on such Securities or any coupons
appertaining thereto when such payments are due; (ii) the Company's obligations
with respect to such Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with
respect to the payment of additional amounts, if any, payable with respect to
such Securities as specified pursuant to Section 3.l(b)(16); (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder; and (iv) this
Article 4. Subject to compliance with this Article 4, the Company may exercise
its option under this Section notwithstanding the prior exercise of its option
under Section 4.5 with respect to such Securities and any coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this Section with
respect to any Securities of or within a series, the Company shall be released
from its obligations under Article 7 and Sections 9.4 and 9.5, and, if
specified pursuant to Section 3.1, its obligations under any other covenant,
with respect to such Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 4.6 are
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satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Article 7 and
Sections 9.4 and 9.5, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.1(3) or 5.1(5) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall
be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 4.4 or Section
4.5 to any Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.11 who shall agree to comply with, and shall
be entitled to the benefits of, the provisions of Sections 4.3 through
4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such Sections also a "Trustee") as trust
funds in trust for the purpose of making the payments referred to in
clauses (x) and (y) of this Section 4.6(a), specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (A) money
in an amount (in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then
specified as payable at Maturity), or (B) if Securities of such series
are not subject to repayment at the option of Holders, Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment referred to in clause
(x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof
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delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (x) the principal of,
premium, if any, and interest, if any, on such Securities and any
coupons appertaining thereto on the Maturity of such principal or
installment of principal or interest and (y) any mandatory sinking
fund payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto.
Before such a deposit the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date or
dates in accordance with Article 10, which shall be given effect in
applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event
of Default under, this Indenture or result in a breach or violation
of, or constitute a default under, any other material agreement or
instrument to which the Company is a party or by which it is bound.
(c) No Default or Event of Default under Section 5.1(4)
or 5.1(5) with respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing during the period
commencing on the date of such deposit and ending on the 91st day
after such date (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(e) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance
and will be subject to
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Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the,
related exercise of the Company's option under Section 4.4 or Section
4.5 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the trustee
for such trust funds or (ii) all necessary registrations under said
act have been effected.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in
connection therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in Section 4.6(a) has
been made, (i) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms
of such Security to receive payment in a currency or currency unit other than
that in which the deposit pursuant to Section 4.6(a) has been made in respect
of such Security, or (ii) a Conversion Event occurs as contemplated in Section
3.11(d) or 3.11(e) or by the terms of any Security in respect of which the
deposit pursuant to Section
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4.6(a) has been made, the indebtedness represented by such Security and any
coupons appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of, premium, if
any, and interest, if any, on such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such currency or currency unit in effect on
the second Business Day prior to each payment date, except in the case of a
Conversion Event with respect to such currency or currency unit which is in
effect (as nearly as feasible) at the time of the Conversion Event.
Section 4.8. Transfers and Distribution at Company Request.
To the extent permitted by the Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 76, as amended or interpreted by the
Financial Accounting Standards Board from time to time, or any successor
thereto ("Standard No. 76"), or to the extent permitted by the Commission, the
Trustee shall, from time to time, take one or more of the following actions as
specified in a Company Request:
(a) Retransfer, reassign and deliver to the Company any
securities deposited with the Trustee pursuant to Section 4.6(a),
provided that the Company shall, in substitution therefor,
simultaneously transfer, assign and deliver to the Trustee other
Government Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and
(b) The Trustee (and any Paying Agent) shall promptly pay
to the Company, upon Company Request, any excess money or securities
held by them at any time, including, without limitation, any assets
deposited with the Trustee pursuant to Section 4.6(a) exceeding those
necessary for the purposes of Section 4.6(a).
The Trustee shall not take the actions described in subsections (a) and (b) of
this Section 4.8 unless it shall have first received a written report of Xxxxxx
Xxxxxxxx LLP, or another nationally recognized independent public accounting
firm, (i) expressing their opinion that the contemplated action is permitted by
Standard No. 76 or the Commission, for transactions accounted for as
extinguishment of debt under the circumstances described in paragraph 3.c of
Standard No. 76 or any successor provision, and (ii) verifying the accuracy,
after giving effect to such action or actions, of the computations which
demonstrate that the amounts remaining to be earned on the Government
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Obligations deposited with the Trustee pursuant to Section 4.6(a) will be
sufficient for purposes of Section 4.6(a).
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default. An "Event of Default" occurs
with respect to the Securities of any series if (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article 12 or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on
any Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.1(b)(16) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of or any premium on any Security of that series when the same becomes
due and payable at its Maturity or on redemption or otherwise, or in
the payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series, and in each case such default
continues for a period of ten days;
(3) the Company defaults in the performance of, or
breaches, any covenant or warranty of the Company in this Indenture,
with respect to any Security of that series (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and such default or breach
continues for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the
entry of an order for relief against it in an involuntary case, (C)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment
for the benefit of its creditors;
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(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a Custodian of the
Company for all or substantially all of its property, or (C) orders
the liquidation of the Company; and the order or decree remains
unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the outstanding Securities of that
series, by written notice to the Company (and, if given by the Holders, to the
Trustee), may declare the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable and upon any such declaration
such principal (or, in the case of original Issue Discount Securities or
Indexed Securities, such specified amount) shall be immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the outstanding Securities of that series, by written
notice to the Trustee, may rescind and annul such declaration and its
consequences if all existing Defaults and Events of Default with respect to
Securities of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.7. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes
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due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest, if
any, and, to the extent that payment of any such interest shall be legally
enforceable, interest on any overdue principal, premium, if any, and on any
overdue interest, at the rate or rates prescribed therefor in such Securities
or coupons, if any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If 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 5.4. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders of
Securities allowed in any judicial proceedings relating to the Company, its
creditors or its property.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right
or remedy accruing upon an Event of Default shall impair any such right or
remedy or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of Outstanding Securities of any series
by notice to the Trustee may waive on
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behalf of the Holders of all Securities of such series a past Default or Event
of Default with respect to that series and its consequences except (i) a
Default or Event of Default in the payment of the principal of, premium, if
any, or interest, if any, on any Security of such series or any coupon
appertaining thereto or (ii) in respect of a covenant or provision hereof which
pursuant to Section 8.2 cannot be amended or modified without the consent of
the Holder of each outstanding Security of such series adversely affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture.
Section 5.8. Control by Majority. The Holders of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected (with each such series voting as a class) 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 it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
(ii) the Trustee may refuse to follow any direction that is unduly prejudicial
to the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability and (iii) the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of
any Security of any series or any related coupons shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have made a
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing
the remedy;
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(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to institute any
such proceedings; and
(5) during such 60-day period, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or coupon to receive payment of
principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest,
if any, on the Security, on or after the respective due dates expressed in the
Security (or, in case of redemption, on the redemption dates) and the right of
any Holder of a coupon to receive payment of interest due as provided in such
coupon, or, subject to Section 5.9, to bring 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 5.11. Application of Money Collected. Subject to
Article 12, if the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal, premium, if any, or interest, if any, upon presentation of the
Securities and any coupons appertaining thereto and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of
which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium,
if any, and interest, if any, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, if any,
respectively; and
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Third: to the Person or Persons entitled thereto.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, and any provision of the Trust Indenture Act to
such effect is hereby expressly excluded from this Indenture, as permitted by
the Trust Indenture Act.
Section 5.15. Action Respecting Securities Held in UAL
Corporation Capital Trust. With respect to any series of Securities held as
trust assets of a UAL Corporation Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, any authorization, approval,
consent, request, notice, waiver or other action of Holders required or
permitted to be taken under this Indenture or pursuant to the terms of any
Security, in addition to any other authorization, approval, consent, request,
notice, waiver or other action required hereunder, will require such
authorization, approval, consent, request, notice, waiver or other action of
holders of
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the Preferred Securities and the Common Securities of such UAL Corporation
Capital Trust as may be required under the Declaration of Trust of such UAL
Corporation Capital Trust.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of 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) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture with
respect to the Securities of such series, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a
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majority in principal amount of the Outstanding Securities of any
series 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 with
respect to the Securities of such series.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2. Rights of Trustee. Subject to the provisions of
the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, and any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be sufficiently evidenced as
provided therein), and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate.
(d) The Trustee may consult with counsel of its selection
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
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omitted by it hereunder in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction.
(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,
direction, consent, order, bond, debenture, note or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(g) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or negligence of any agent
or attorney appointed with due care.
(h) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(i) The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
Section 6.3. Trustee May Hold Securities. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company, an Affiliate or Subsidiary with the same
rights it would have if it were not Trustee, Paying Agent, Registrar or such
other agent.
Section 6.4. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it
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hereunder except as otherwise agreed to in writing with the Company.
Section 6.5. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the Securities
or any coupon. The Trustee shall not be accountable for the Company's use of
the proceeds from the Securities or for monies paid over to the Company
pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to
the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of all uncured Defaults known to it; provided, however, that, in
the case of a Default in payment on the Securities of any series, the Trustee
may withhold the notice if and so long as the board of directors, the executive
committee or a committee of its Responsible Officers in good faith determines
that withholding such notice is in the interests of Holders of Securities of
that series; provided further that, in the case of any default or breach of the
character specified in Section 5.1(3) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 6.7. Reports by Trustee to Holders. (a) Within 60
days after each May 15 of each year commencing with the first May 15 after the
first issuance of Securities pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities as provided in Section 313(c) of
the Trust Indenture Act a brief report dated as of such May 15 if required by
Section 313(a) of the Trust Indenture Act. The Trustee also shall comply with
Section 313(b) and (d) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange.
Section 6.8. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the
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most recent list available to it of the names and addresses of Holders of
Securities of each series. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee semiannually on or before the last day of June and
December in each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession of the Registrar, the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of Holders of Securities of each such series. If there are Bearer
Securities of any series outstanding, even if the Trustee is the Registrar, the
Company shall furnish to the Trustee such a list containing such information
with respect to Holders of such Bearer Securities only.
Section 6.9. Compensation and Indemnity. (a) The Company
shall pay to the Trustee from time to time such compensation as shall be agreed
to in writing between the Company and the Trustee for all services rendered by
it hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it
in connection with the performance of its duties under this Indenture, except
any such expense as may be attributable to its negligence or bad faith.
(b) The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold it harmless against, any loss, liability or
expense, including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee), incurred by it without negligence or
bad faith on its part arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent.
(c) The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to the Securities
of any series on all money or property held or collected by the Trustee, except
that held in trust to pay principal, premium, if any, and interest, if any, on
particular Securities.
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(e) When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 5.1(4) or Section
5.1(5), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
(f) The provisions of this Section shall survive the
termination of this Indenture.
Section 6.10. Replacement of Trustee. (a) The resignation
or removal of the Trustee and the appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of appointment as
provided in Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of any series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may remove the Trustee with
respect to that series by so notifying the Trustee and the Company and may
appoint a successor Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months;
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months;
or
(3) the Trustee becomes incapable of acting, is adjudged
a bankrupt or an insolvent or a receiver or public officer takes
charge of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee with respect to all Securities,
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or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all other persons similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
one or more series, the Company, by or pursuant to Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers and duties of the
retiring Trustee; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided
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for notices to the Holders of Securities in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the securities of
such series and the address of its Corporate Trust office.
Section 6.12. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder which shall be eligible to act as Trustee
under Section 310(a)(1) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia 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. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.13. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue,
exchange, registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to
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include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $1,500,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating
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Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: ____________________ The First National Bank of Chicago,
as Trustee
By________________________
as Authenticating Agent
By________________________
Authorized Signatory
Sections 6.2, 6.3, 6.5 and 6.9 shall be applicable to any Authenticating Agent.
Section 6.15. Trustee's Application for Instructions from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than fifteen Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
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ARTICLE 7
Consolidation, Merger or Sale by the Company
The Company may merge or consolidate with or into any other
corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or corporation, if (i)(A)
in the case of a merger or consolidation, the Company is the surviving
corporation or (B) in the case of a merger or consolidation where the Company
is not the surviving corporation and in the case of any such sale, conveyance
or other disposition, the successor or acquiring corporation is a corporation
organized and existing under the laws of the United States or a State thereof
and such corporation expressly assumes by supplemental indenture all the
obligations of the Company under the Securities and any coupons appertaining
thereto and under this Indenture, (ii) immediately thereafter, giving effect to
such merger or consolidation, or such sale, conveyance, transfer or other
disposition, no Default or Event of Default shall have occurred and be
continuing, and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such merger or
consolidation, or such sale, conveyance, transfer or other disposition complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with. In the event of the
assumption by a successor corporation of the obligations of the Company as
provided in clause (i)(B) of the immediately preceding sentence, such successor
corporation shall succeed to and be substituted for the Company hereunder and
under the Securities and any coupons appertaining thereto and all such
obligations of the Company shall terminate.
ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such
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series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default with respect
to all or any series of Securities;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal
only) or to facilitate the issuance of Securities in global form;
(5) to add to, change or eliminate any of the provisions
of this Indenture, provided that any such addition, change or
elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.10;
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any;
(10) to correct or supplement any provision herein or in
any supplemental indenture which may be defective or inconsistent with
any other provision herein or in any supplemental indenture, to cure
any ambiguity or correct any mistake or to make any other provisions
with respect to matters or questions arising under this Indenture,
provided such action shall not adversely affect the interests of the
Holders of Securities of any series; or
(11) to comply with any requirement of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act.
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Section 8.2. Supplemental Indentures With Consent of Holders.
With the written consent of the Holders of a majority of the aggregate
principal amount of the Outstanding Securities of each series adversely
affected by such supplemental indenture, the Company and the Trustee may enter
into an indenture or indentures supplemental hereto to add any provisions to or
to change or eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the Holders of
Securities of each such series; provided, however, that without the consent of
the Holder of each Outstanding Security affected thereby, an amendment under
this Section may not:
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, (except
that a valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto, shall
not constitute a change for this purpose) or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the coin or currency in which, any Securities
or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or modify the provisions of this indenture
with respect to the subordination of the Securities, or adversely
affect the right to convert any Security as may be provided pursuant
to Section 3.1 herein;
(2) reduce the percentage of principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 9.2;
(4) adversely affect the right to convert the Securities
of any series as provided in Article 12 hereof; or
(5) make any change in Section 5.7 or this Section 8.2
except to increase any percentage or to provide that certain
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other provisions of this Indenture cannot be modified or waived with
the consent of the Holders of each Outstanding Security affected
thereby.
For the purposes of this Section 8.2, if the Securities of any
series are issuable upon the exercise of warrants, any holder of an unexercised
and unexpired warrant with respect to such series shall not be deemed to be a
Holder of Outstanding Securities of such series in the amount issuable upon the
exercise of such warrants.
A supplemental indenture that 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 that modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it
is sufficient if they consent to the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Section 8.3. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with the
requirements of the Trust Indenture Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which
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affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any
coupons of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any coupons of such series.
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, If Any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal
of, premium, if any, and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. An installment of principal or
interest shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date money designated for and sufficient to pay the
installment.
Section 9.2. Maintenance of Office or Agency. If Securities
of a series are issued as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company will maintain, (i) subject to any laws or
regulations
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applicable thereto, an office or agency in a Place of Payment for that series
which is located outside the United States, where Securities of that series and
related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in London, Luxembourg
or any other required city located outside the United States, as the case may
be, so long as the Securities of that series are listed on such exchange, and
(ii) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to
any address in the United States, by transfer to an account located in the
United States or upon presentation or surrender in the United States of a
Bearer Security or coupon for payment, even if the payment would be credited to
an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any coupons, if any)
of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company
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of its obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of, premium, if any, or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium, if
any, or interest, if any, so becoming due until such sums shall be paid to such
persons or otherwise disposed of as herein provided and will promptly notify
the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest, if any, on Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal, premium, if any, or interest, if
any, on the Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest, if any, has become due and
payable shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence; provided
that nothing in this Section 9.4 shall prevent the abandonment or termination
of any right or franchise of the Company, if, in the opinion of the Company,
such abandonment or termination is in the best interests of the Company and
does not materially adversely affect the ability of the Company to operate its
business or to fulfill its obligations hereunder.
Section 9.5. Insurance. The Company covenants and agrees
that it will maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations or
through a program of self-insurance in such amounts and covering such risks as
are consistent with sound business practice for corporations engaged in the
same or a similar business similarly situated.
Section 9.6. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which it may
be required to file with the Commission pursuant to section 13 or
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section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if it 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, as
amended, 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) 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 compliance by it with the conditions and covenants
provided for in this Indenture, as may be required from time to time
by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by it pursuant to subsections (a) and (b) of this Section 9.6,
as may be required by rules and regulations prescribed from time to
time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 9.7. Annual Review Certificate. The Company
covenants and agrees to deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a brief certificate from the principal
executive officer, principal financial officer, or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 9.7, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 9.8. Limitation on Dividends and Capital Stock
Acquisitions. The Company covenants and agrees that, if at any time it has
failed to make any payment of interest, principal or
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premium on the Securities when due (after giving effect to any grace period for
payment thereof as provided in Section 5.1), the Company will not, until all
defaulted interest on the Securities and all principal and premium, if any,
then due and payable on the Securities shall have been paid in full, (i)
declare set aside or pay any dividend or distribution on any capital stock of
the Company (except for dividends or distributions in shares of its capital
stock or rights to acquire shares of its capital stock), or (ii) repurchase,
redeem or otherwise acquire, or make any sinking fund payment for the purchase
or redemption of, any shares of its capital stock (except by conversion into or
exchange for shares of its capital stock and except for a redemption, purchase
or other acquisition of shares of its capital stock made for the purpose of an
employee incentive plan or benefit plan of the Company or any of its
subsidiaries); provided, however, that any moneys theretofore deposited in any
sinking fund with respect to any preferred stock of the Company in compliance
with this Section 9.8 and the provisions of such sinking fund may thereafter be
applied to the purchase or redemption of such preferred stock in accordance
with the terms of such sinking fund without regard to the restrictions in this
Section 9.8.
Section 9.9. Notice of Default. The Company shall file with
the Trustee written notice of the occurrence of any Default or Event of Default
within 30 Business Days of its becoming aware of any such Default or Event of
Default.
ARTICLE 10
Redemption
Section 10.1. Applicability of Article. Securities
(including coupons, if any) of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including coupons, if any,
shall be evidenced by or pursuant to a Board Resolution or an Officers'
Certificate. In the case of any redemption at the election of the Company of
less than all the Securities or coupons, if any, of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities (i) prior to the
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expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including coupons, if any) of a series with the same original issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee, not
more than 45 days prior to the redemption date, shall select the Securities of
the series to be redeemed in such manner as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from Securities of the
series that are Outstanding and that have not previously been called for
redemption and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities, including coupons, if
any, of that series or any integral multiple thereof) of the principal amount
of Securities, including coupons, if any, of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including
coupons, if any) redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities (including coupons, if any) which has been
or is to be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption shall be given
in the manner provided in Section 1.6 not less than 30 days nor more than 60
days prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Security
or Securities to be redeemed;
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(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge; a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption
and all unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the redemption price;
(7) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished; and
(10) CUSIP number.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company s request, by the Trustee in the name
and at the expense of the Company.
Section 10.5. Deposit of Redemption Price. On or prior to
12:00 noon New York City time on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 9.3) an
amount of money in the currency or currencies (including currency units or
composite currencies) in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (unless the
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Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and provided further that, unless otherwise
specified as contemplated by Section 3.1, installments of interest on
Registered Securities whose Stated Maturity is prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the
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amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside of the United
States (except as otherwise provided pursuant to Section 9.2) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender of
a Security that is redeemed in part at any Place of Payment therefor (with, if
the Company or the Trustee so require, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
of the same series, the same form and the same Maturity in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal of the Security surrendered.
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such
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series, with all unmatured coupons appertaining thereto and (ii) may apply as a
credit Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 11.2 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 10.4. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 10.6 and 10.7.
ARTICLE 12
Subordination of Securities
SECTION 12.1. Securities Subordinated to Senior Indebtedness.
(a) The Company agrees, and each Holder of the Securities by acceptance
thereof likewise agrees, that the payment of the principal of, premium, if any,
and interest, if any, on the Securities is subordinated, to the extent and in
the manner provided in this Article 12, to the prior payment in full of all
Senior Indebtedness of the Company.
(b) All provisions of this Article 12 shall be subject to
Section 12.14.
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SECTION 12.2. Company Not to Make Payments with Respect to
Securities in Certain Circumstances; Limitations on Acceleration of Securities.
(a) Upon the maturity of any Senior Indebtedness of the Company by lapse of
time, acceleration or otherwise, all obligations with respect thereto shall
first be paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holders of such Senior Indebtedness, before any payment is
made on account of the principal of, premium, if any, or interest, if any, on
the Securities or to redeem, retire, purchase, deposit moneys for the
defeasance of or acquire any of the Securities.
(b) Upon the happening of (i) any default in payment of
any Senior Indebtedness of the Company or (ii) any other default on Senior
Indebtedness of the Company and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms, then, unless (w) such default relates
to Senior Indebtedness of the Company in an aggregate amount equal to or less
than $20 million, (x) such default shall have been cured or waived or shall
have ceased to exist, (y) any such acceleration has been rescinded, or (z) such
Senior Indebtedness has been paid in full, no direct or indirect payment in
cash, property or securities, by set-off or otherwise (except payment of the
Securities from funds previously deposited in accordance with Section 4.1 at
any time such deposit was not prohibited by this Indenture), shall be made or
agreed to be made by the Company on account of the principal of, premium, if
any, or interest, if any, on the Securities, or in respect of any redemption,
retirement, purchase, deposit of moneys for the defeasance or other acquisition
of any of the Securities in the case of such a default in Senior Indebtedness
of the Company, the Company shall not deposit money for any such payment or
distribution with the Trustee or any Paying Agent nor shall the Company (if the
Company is acting as its own Paying Agent) segregate and hold in trust money
for any such payment or distribution.
(c) Upon the happening of an event of default (other than
under circumstances when the terms of paragraph (b) of this Section 12.2 are
applicable) with respect to any Senior Indebtedness of the Company pursuant to
which the holders thereof are entitled under the terms of such Senior
Indebtedness to immediately accelerate the maturity thereof (without further
notice or expiration of any applicable grace periods), upon written notice
thereof given to each of the Company and the Trustee by the trustee for or
other representative of the holders of at least $25 million of Senior
Indebtedness of the Company (a "Payment Notice"), then, unless and until such
event of default shall have been cured or waived or shall have ceased to exist,
no direct or indirect payment in cash, property or securities, by set-off or
otherwise (except payment of the Securities from funds previously deposited in
accordance with Section 4.1 at any time such deposit was not prohibited by this
Indenture), shall be made
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or agreed to be made by the Company on account of the principal of or premium,
if any, or interest, if any, on the Securities, or in respect of any
redemption, retirement, purchase, deposit of moneys for the defeasance or other
acquisition of any of the Securities, and the Company shall not deposit money
for any such payment or distribution with the Trustee or any Paying Agent nor
shall the Company or a Subsidiary (if the Company or such Subsidiary is acting
as Paying Agent) segregate and hold in trust money for any such payment or
distribution (a "Payment Block"); provided, however, that this Section 12.2(c)
shall not prevent the making of any payment for more than 120 days after a
Payment Notice shall have been given unless the Senior Indebtedness in respect
of which such event of default exists has been declared due and payable in its
entirety, in which case no such payment shall be made until such acceleration
has been rescinded or annulled or such Senior Indebtedness has been paid in
full in accordance with its terms. Notwithstanding the foregoing, (i) not more
than one Payment Notice shall be given with respect to a particular event of
default (which shall not bar subsequent Payment Notices for other such events
of default), (ii) all events of default under Senior Indebtedness occurring
within any 30-day period shall be treated as one event of default to the extent
that one or more Payment Notices are issued in connection therewith and (iii)
no more than two Payment Blocks shall be permitted within any period of 12
consecutive months. Any payment made in contravention of the provisions of
this Section 12.2(c) shall be returned to the Company.
(d) In the event that, notwithstanding the provisions of
Section 12.2(a) or 12.2(b), the Trustee or the Holder of any Security shall
have received any payment on account of the principal of or premium, if any, or
interest, if any, on the Securities in contravention of Section 12.2(a) or
12.2(b) or after the happening of a default in payment of any Senior
Indebtedness of the Company, or any acceleration of the maturity of any Senior
Indebtedness of the Company, then, in either such case, except in the case of
any such default which shall have been cured or waived or shall have ceased to
exist, such payment (subject to the provisions of Sections 12.6 and 12.7) shall
be held for the benefit of, and shall be paid over and delivered to, the
holders of such Senior Indebtedness of the Company (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness of the
Company held by them) or their representative or the trustee under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness of
the Company may have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay all Senior Indebtedness of the Company in
full in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness of the
Company.
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(e)(1) Upon the occurrence of an Event of Default under
Section 5.1(1) through (3) and (6), the Trustee or holders of 25% of the
outstanding principal amount of the Securities of any series must give notice
of such Event of Default and the intention to accelerate to the Company and any
holders of Senior Indebtedness which have theretofore requested of the Trustee
such notice, and no acceleration of the Securities of any series shall be
effective unless and until such Event of Default is continuing on the sixtieth
day after the date of delivery of such notice. The Company may pay the holders
of the Securities of any series any defaulted payment and all other amounts due
following any such acceleration of the maturity of the Securities if Section
12.2(a) would not prohibit such payment to be made at that time.
(2) Nothing in this Article 12 shall prevent or delay the
Trustee or the holders of the Securities from taking any action in connection
with the acceleration of the maturity of the Securities pursuant to Section 5.2
upon the occurrence of an Event of Default under either of Section 5.1(4) or
5.1(5).
(3) Except as provided in Section 12.2(e)(1), a failure
to make any payment with respect to the Securities as a result of the rights of
holders of Senior Indebtedness of the Company described in Section 12.2(b) or
12.2(c) will not have any effect on the right of holders of the Securities to
accelerate the maturities thereof as a result of such payment default. The
Company shall give prompt written notice to the Trustee of any default in the
payment of principal of or interest on any Senior Indebtedness of the Company,
and in the event of any such default, shall provide to the Trustee, in the form
of an Officers' Certificate, the names, addresses and respective amounts due
holders of such Senior Indebtedness or the name and address of the trustee
acting on their behalf, if any. The Trustee shall be entitled to rely
conclusively on such Officers' Certificate without independent verification.
SECTION 12.3. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or Reorganization of the
Company. Upon the distribution of assets of the Company in any Dissolution,
winding up, liquidation (total or partial) or similar proceeding relating to
the Company (whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or otherwise):
(1) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payment in full of all Senior
Indebtedness (or to have such payment duly provided for in a manner
satisfactory to them) in cash or in a manner satisfactory to the
holders of Senior Indebtedness of the Company before the Holders of
the Securities, in the case of Senior Indebtedness of the Company, are
entitled to
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receive any payment on account of the principal of, premium, if any,
or interest, if any, on the Securities;
(2) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or readjusted or
securities of the Company or any other company, trust or corporation
provided for by a plan of reorganization or readjustment, the payment
of which is junior or otherwise subordinate, at least to the extent
provided in this Article 12 with respect to the Securities, to the
payment of all Senior Indebtedness of the Company at the time
outstanding and to the payment of all securities issued in exchange
therefor to the holders of the Senior Indebtedness of the Company at
the time outstanding), to which the Holders of the Securities or the
Trustee on behalf of the Holders of the Securities would be entitled
except for the provisions of this Article 12, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution directly to the holders of the Senior Indebtedness of the
Company or their representatives or to the trustee under any indenture
under which such Senior Indebtedness may have been issued (pro rata)
as to each such holder, representative or trustee on the basis of
respective amounts of unpaid Senior Indebtedness held or represented
by each), to the extent necessary to make payment in full of all
Senior Indebtedness of the Company remaining unpaid, after giving
effect to any concurrent payment or distribution or provision therefor
to the holders of such Senior Indebtedness; and
(3) in the event that notwithstanding the foregoing
provisions of this Section 12.3, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or
readjusted or securities of the Company or any other company, trust or
corporation provided for by a plan of reorganization or readjustment,
the payment of which is junior or otherwise subordinate, at least to
the extent provided in this Article 12 with respect to the Securities,
to the payment of all Senior Indebtedness of the Company at the time
outstanding and to the payment of all securities issued in exchange
therefor to the holders of the Senior Indebtedness of the Company at
the time outstanding), shall be received by the Trustee or the Holders
of the Securities on account of principal of, premium, if any, or
interest, if any, on the Securities before all Senior Indebtedness of
the Company is paid in full in cash or in a manner satisfactory to the
holders of such Senior Indebtedness in accordance with its terms, or
effective provision made for its payment, such payment or distribution
(subject to the provisions of Sections 12.6 and
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12.7) shall be received and held for the benefit of and paid over to
the holders of the Senior Indebtedness of the Company remaining unpaid
or unprovided for or their representative, or to the trustee under any
indenture under which such Senior Indebtedness of the Company may have
been issued (pro rata as provided in paragraph (2) above), for
application to the payment of such Senior Indebtedness of the Company
to the extent necessary to pay all such Senior Indebtedness of the
Company in full in cash or in a manner satisfactory to the holders of
Senior Indebtedness of the Company, in accordance with its terms,
after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness of the
Company.
The Company shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of the Company or
any assignment for the benefit of the Company's creditors tending toward the
liquidation of the business and assets of the Company.
SECTION 12.4. Holders to Be Subrogated to Rights of Holders
of Senior Indebtedness. Upon the payment in full of all Senior Indebtedness of
the Company in cash or in a manner satisfactory to the holders of such Senior
Indebtedness, the Holders of the Securities shall be subrogated equally and
ratably to the rights of the holders of Senior Indebtedness of the Company to
receive payments or distributions of assets of the Company applicable to the
Senior Indebtedness of the Company until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of Senior Indebtedness of the Company by or on
behalf of the Company or by or on behalf of Holders of the Securities by virtue
of this Article 12 which otherwise would have been made to the Holders of the
Securities shall, as between the Company and the Holders of the Securities, be
deemed to be payment by the Company to or on account of Senior Indebtedness of
the Company, it being understood that the provisions of this Article 12 are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of Senior Indebtedness of
the Company, on the other hand.
SECTION 12.5. Obligation of the Company Unconditional.
Nothing contained in this Article 12 or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between the Company and the Holders
of the Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest, if any, on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative
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rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness of the Company, nor, except as expressly
provided in this Article 12, shall anything herein or in the Securities prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 12 of the holders of Senior
Indebtedness of the Company in respect of cash, property or securities of the
Company upon the exercise of any such remedy. Upon any distribution of assets
of the Company referred to in this Article 12, the Trustee, subject to the
provisions of Section 6.1, and the Holders of the Securities shall be entitled
to rely upon any order or decree by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or the Holders of the securities,
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Indebtedness of the Company and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 12.
Nothing contained in this Article 12 or elsewhere in this
Indenture or in any Security is intended to or shall affect the obligations of
the Company to make, or prevent the Company from making, at any time except
during the pendency of any dissolution, winding up, liquidation (total or
partial) or similar proceeding, and except during the continuance of any event
specified in Section 12.2 (not cured or waived), payments at any time of the
principal of (or premium, if any) or interest, if any, on the Securities.
SECTION 12.6. Knowledge of Trustee. Notwithstanding any
provision of this Indenture, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee until three Business Days after a
Responsible Officer of the Trustee on behalf of the Trustee shall have received
at the Corporate Trust Office of the Trustee written notice thereof from the
Company, any Holder, or the holder or representative of any class of Senior
Indebtedness of the Company identifying the specific sections of this Indenture
involved and describing in detail the facts that would obligate the Trustee to
withhold payments to Holders of Securities, and prior to such time, the
Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects conclusively to assume that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of a written notice by an individual
representing himself to be a holder of Senior Indebtedness of the Company (or a
trustee on behalf of such holder) to establish that such notice
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has been given by a holder of any such Senior Indebtedness or a trustee on
behalf of any such holder.
In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness of the Company to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of the Company held by such person, the extent to which
such person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
SECTION 12.7. Application by Trustee of Moneys Deposited with
It. If two Business Days prior to the date on which by the terms of this
Indenture any moneys deposited with the Trustee or any Paying Agent (other than
the Company or a Subsidiary) may become payable for any purpose (including,
without limitation, the payment of the principal of, premium, if any, or
interest, if any, on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in Section 12.6, then the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it on or after such
date. This Section 12.7 shall be construed solely for the benefit of the
Trustee and Paying Agent and shall not otherwise affect the rights of holders
of such Senior Indebtedness.
SECTION 12.8. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness of the Company to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act by any such holder, or by any noncompliance by the Company
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with.
SECTION 12.9. Holders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate in the discretion of the Trustee to
effectuate the subordination provided in this Article 12 and appoints the
Trustee his attorney in-fact for such purpose, including, without
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limitation, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the timely filing of a claim for the unpaid balance of its or his
Securities in the form required in said proceedings. If the Trustee does not
file a proper claim or proof of debt in the form required in such proceedings
before the expiration of the time to file such claim or claims, then the
holders of Senior Indebtedness of the Company are hereby authorized to have the
right to file and are hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities.
SECTION 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this Article 12
in respect of any Senior Indebtedness of the Company at any time held by it to
the same extent as any other holder of such Senior Indebtedness of the Company,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder. With respect to the holders of Senior
Indebtedness of the Company, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in
this Article 12, and no implied covenants or obligations with respect to the
holders of Senior Indebtedness of the Company shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness of the Company, and the Trustee shall not
be liable to any holder of Senior Indebtedness of the Company if it shall
mistakenly pay over or deliver to Holders of Securities, the Company or any
other Person moneys or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article 12 or otherwise.
SECTION 12.11. Article 12 Not to Prevent Events of Default.
The failure to make a payment on account of principal or interest by reason of
any provision in this Article 12 shall not be construed as preventing the
occurrence of an Event of Default under Section 5.1.
SECTION 12.12. Paying Agents Other Than the Trustee. In case
at any time any Paying Agent (including, without limitation, the Company or any
Subsidiary) other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article 12 shall
in such case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent (except the Company and its
subsidiaries in the case of Sections 12.6 and 12.7) within its meaning as fully
for all intents and purposes as if such Paying Agent were named in this Article
12 in addition to or in place of the Trustee.
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SECTION 12.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article 12 shall apply to amounts due to the Trustee pursuant
to Section 6.9.
SECTION 12.14. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money held in trust
under Article 4 by the Trustee for the payment of principal of, premium if any,
and interest, if any, on the Securities shall not be subordinated to the prior
payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 12 and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION 12.15. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article Twelve, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.16. Trustee Not Fiduciary for Holders or Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe any
fiduciary duty to the Holders of any Senior Indebtedness and shall not be
liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company or to any other
person cash, property or securities to which any holders of Senior Indebtedness
of the Company shall be entitled by virtue of this Article Twelve or otherwise.
The Trustee shall not be charged with knowledge of the existence of Senior
Indebtedness of the Company or of any facts that would prohibit any payment
hereunder unless a Responsible Officer of the Trustee shall have received
notice to that effect at the address of the Trustee, provided that the Trustee
shall be deemed to have knowledge of the existence of any Senior Indebtedness
to which it acts as Trustee. With respect to the holders of Senior
Indebtedness of the Company, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article Twelve and no implied covenants or
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obligations with respect to holders of Senior Indebtedness of the Company shall
be read into this Indenture against the Trustee.
________________
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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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UAL CORPORATION
By:______________________
Title:
Attest:
___________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By:______________________
Title:
Attest:
______________________________
Title:
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