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Exhibit 4.2
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AETNA LIFE AND CASUALTY COMPANY (To Be Renamed Aetna
Services, Inc.)
ISSUER
AETNA INC.,
GUARANTOR
and
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
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INDENTURE
Dated as of July 1, 1996
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Subordinated Debt Securities
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Reconciliation and tie between certain Sections of this Indenture, dated as of
July 1, 1996, and Sections 310 through 318, inclusive, of the Trust Indenture
Act of 1939:
Trust Indenture
Act Section.........................
Indenture Section
ss. 310(a)(1)............................. 609
(a)(2).............................. 609
(a)(3).............................. Not Applicable
(a)(4).............................. Not Applicable
(b)................................. 608
.................................... 610
ss. 311(a)................................ 613
(b)................................. 613
ss. 312(a)................................ 701
.................................... 702(a)
(b)................................. 702(b)
(c)................................. 702(c)
ss. 313(a)................................ 703(a)
(b)................................. 703(a)
(c)................................. 703(a)
(d)................................. 703(b)
ss. 314(a)................................ 704
(a)(4).............................. 101
.................................... 1004
(b)................................. Not Applicable
(c)(1).............................. 102
(c)(2).............................. 102
(c)(3).............................. Not Applicable
(d)................................. Not Applicable
(e)................................. 102
ss. 315(a)................................ 601
(b)................................. 602
(c)................................. 601
(d)................................. 601
(e)................................. 514
ss. 316(a)................................ 101
(a)(1)(A)........................... 502
.................................... 512
(a)(1)(B)........................... 513
(a)(2).............................. Not Applicable
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(b)................................. 508
(c)................................. 104(c)
ss. 317(a)(1)............................. 503
(a)(2).............................. 504
(b)................................. 1003
ss. 318(a)................................ 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
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PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application..................1
Section 101. Definitions................................................1
Section 102. Compliance Certificates and Opinions......................11
Section 103. Form of Documents Delivered to Trustee....................12
Section 104. Acts of Holders; Record Dates.............................13
Section 105. Notices, Etc., to Trustee, Company and Guarantor..........14
Section 106. Notice to Holders; Waiver.................................15
Section 107. Conflict with Trust Indenture Act.........................15
Section 108. Effect of Headings and Table of Contents..................16
Section 109. Successors and Assigns....................................16
Section 110. Separability Clause.......................................16
Section 111. Benefits of Indenture.....................................16
Section 112. Governing Law.............................................16
Section 113. Legal Holidays............................................16
Section 114. Personal Immunity from Liability for Incorporators,
Stockholders, Etc.................................................17
ARTICLE TWO
Security Forms..........................................................17
Section 201. Forms Generally...........................................17
Section 202. Form of Face of Security..................................18
Section 203. Form of Reverse of Security...............................21
Section 204. Form of Legend for Global Securities......................25
Section 205. Form of Trustee's Certificate of Authentication...........26
Section 206. Form of Guarantee.........................................26
ARTICLE THREE
The Securities..........................................................29
Section 301. Amount Unlimited; Issuable in Series......................29
Section 302. Denominations.............................................32
Section 303. Execution, Authentication, Delivery and Dating............32
Section 304. Temporary Securities......................................35
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 305. Registration, Registration of Transfer and Exchange.......36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..........38
Section 307. Payment of Interest; Interest Rights Preserved............38
Section 308. Persons Deemed Owners.....................................40
Section 309. Cancellation..............................................40
Section 310. Computation of Interest...................................41
ARTICLE FOUR
Satisfaction and Discharge..............................................41
Section 401. Satisfaction and Discharge of Indenture...................41
Section 402. Application of Trust Fund.................................43
ARTICLE FIVE
Remedies................................................................44
Section 501. Events of Default.........................................44
Section 502. Acceleration of Maturity; Rescission and Annulment........47
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................................49
Section 504. Trustee May File Proofs of Claim..........................50
Section 505. Trustee May Enforce Claims Without Possession of
Securities........................................................51
Section 506. Application of Money Collected............................51
Section 507. Limitation on Suits.......................................52
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................................53
Section 509. Restoration of Rights and Remedies........................53
Section 510. Rights and Remedies Cumulative............................53
Section 511. Delay or Omission Not Waiver..............................53
Section 512. Control by Holders........................................54
Section 513. Waiver of Past Defaults...................................54
Section 514. Undertaking for Costs.....................................55
ARTICLE SIX
The Trustee.............................................................56
Section 601. Certain Duties and Responsibilities.......................56
Section 602. Notice of Defaults........................................56
Section 603. Certain Rights of Trustee.................................56
Section 604. Not Responsible for Recitals or Issuance of
Securities........................................................58
Section 605. May Hold Securities.......................................58
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 606. Money Held in Trust.......................................58
Section 607. Compensation and Reimbursement............................58
Section 608. Disqualification; Conflicting Interests...................59
Section 610. Resignation and Removal; Appointment of Successor.........59
Section 611. Acceptance of Appointment by Successor....................61
Section 612. Merger, Conversion, Consolidation or Succession to
Business..........................................................63
Section 613. Preferential Collection of Claims Against Company
or Guarantor......................................................63
Section 614. Appointment of Authenticating Agent.......................63
ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Guarantor............65
Section 701. Company and Guarantor to Furnish Trustee Names
and Addresses of Holders..........................................65
Section 702. Preservation of Information; Communications to
Holders...........................................................66
Section 703. Reports by Trustee........................................66
Section 704. Reports by Company and Guarantor..........................66
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets................................67
Section 801. Company or Guarantor May Consolidate, Etc., Only
on Certain Terms..................................................67
Section 802. Successor Substituted.....................................68
Section 803. Assumption by Guarantor or Subsidiary of
Company's Obligations.............................................68
ARTICLE NINE
Supplemental Indentures.................................................70
Section 901. Supplemental Indentures Without Consent of
Holders...........................................................70
Section 902. Supplemental Indentures with Consent of Holders...........72
Section 903. Execution of Supplemental Indentures......................73
Section 904. Effect of Supplemental Indentures.........................73
Section 905. Conformity with Trust Indenture Act.......................74
Section 906. Reference in Securities to Supplemental Indentures........74
Section 907. Waiver of Compliance by Holders...........................74
Section 908. Subordination Unimpaired..................................74
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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ARTICLE TEN
Covenants...............................................................75
Section 1001. Payment of Principal, Premium and Interest...............75
Section 1002. Maintenance of Office or Agency by Company and
Guarantor.........................................................75
Section 1003. Money for Securities Payments to Be Held in Trust........76
Section 1004. Statement by Officers as to Default......................77
Section 1005. Limitations on Liens on Common Stock of
Principal Subsidiaries............................................78
ARTICLE ELEVEN
Redemption of Securities................................................78
Section 1101. Applicability of Article.................................78
Section 1102. Election to Redeem; Notice to Trustee....................78
Section 1103. Selection by Trustee of Securities To Be Redeemed........79
Section 1104. Notice of Redemption.....................................79
Section 1105. Deposit of Redemption Price..............................80
Section 1106. Securities Payable on Redemption Date....................80
Section 1107. Securities Redeemed in Part..............................81
ARTICLE TWELVE
Defeasance and Covenant Defeasance......................................81
Section 1201. Company's Option to Effect Defeasance or
Covenant Defeasance...............................................81
Section 1202. Defeasance and Discharge.................................81
Section 1203. Covenant Defeasance......................................82
Section 1204. Conditions to Defeasance or Covenant Defeasance..........83
Section 1205. Deposited Money and U.S. Government
Obligations or Foreign Government Obligations to be Held
In Trust; Other Miscellaneous Provisions..........................86
Section 1206. Reinstatement............................................87
ARTICLE THIRTEEN
Sinking Funds...........................................................88
Section 1301. Applicability of Article.................................88
Section 1302. Satisfaction of Sinking Fund Payments with
Securities........................................................88
Section 1303. Redemption of Securities for Sinking Fund................88
ARTICLE FOURTEEN
Subordination of Securities.............................................89
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 1401. Securities Subordinate to Senior Debt of the
Company...........................................................89
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
of the Company....................................................89
Section 1403. Prior Payment to Senior Debt of the Company Upon
Acceleration of Securities........................................91
Section 1404. No Payment When Senior Debt of the Company in
Default...........................................................92
Section 1405. Payment Permitted If No Default..........................92
Section 1406. Subrogation to Rights of Holders of Senior Debt of
the Company.......................................................93
Section 1407. Provisions Solely to Define Relative Rights..............94
Section 1408. Trustee to Effectuate Subordination......................94
Section 1409. No Waiver of Subordination Provisions....................94
Section 1410. Notice to Trustee........................................95
Section 1411. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................................96
Section 1412. Trustee Not Fiduciary For Holders of Senior Debt
of the Company....................................................96
Section 1413. Rights of Trustee as Holder of Senior Debt of the
Company; Preservation of Trustee's Rights.........................97
Section 1414. Article Applicable to Paying Agents......................97
Section 1415. Defeasance of This Article Fourteen......................97
ARTICLE FIFTEEN
Guarantee of Securities.................................................97
Section 1501. Guarantee................................................97
Section 1502. Subrogation..............................................98
Section 1503. Reinstatement............................................99
Section 1504. Execution and Delivery of Guarantees.....................99
ARTICLE SIXTEEN
Subordination of Guarantees.............................................99
Section 1601. Guarantees Subordinate to Senior Debt of the
Guarantor.........................................................99
Section 1602. Payment Over of Proceeds Upon Dissolution, Etc.
of the Guarantor.................................................100
Section 1603. Prior Payment to Senior Debt of the Guarantor
Upon Acceleration of Securities..................................101
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 1604. No Payment When Senior Debt of the Guarantor in
Default..........................................................102
Section 1605. Payment Permitted If No Default.........................103
Section 1606. Subrogation to Rights of Holders of Senior Debt of
the Guarantor....................................................103
Section 1607. Provisions Solely to Define Relative Rights.............104
Section 1608. Trustee to Effectuate Subordination.....................105
Section 1609. No Waiver of Subordination Provisions...................105
Section 1610. Notice to Trustee.......................................106
Section 1611. Reliance on Judicial Order or Certificate of
Liquidating Agent................................................107
Section 1612. Trustee Not Fiduciary For Holders of Senior Debt
of the Guarantor.................................................107
Section 1613. Rights of Trustee as Holder of Senior Debt of the
Guarantor; Preservation of Trustee's Rights......................107
Section 1614. Article Applicable to Paying Agents.....................108
Section 1615. Defeasance of This Article Sixteen......................108
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of July 1, 1996, among AETNA LIFE AND CASUALTY COMPANY
(to be renamed Aetna Services, Inc.), a corporation duly organized and validly
existing under the laws of the State of Connecticut (herein called the
"Company"), having its principal office at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, AETNA INC., a corporation duly organized and existing under
the laws of the State of Connecticut (herein called the "Guarantor"), having its
principal office at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national association duly organized and existing under the laws of the United
States of America, as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the unconditional guarantee of the
Securities on the terms hereinafter set forth and the execution and delivery of
the Indenture.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors", when used with reference to either the Company or
the Guarantor, means either (i) the Board of Directors of the Company or the
Guarantor, as the case may be, the Executive Committee of such Board of
Directors or any other duly authorized committee of directors and/or officers
appointed by such Board of Directors or Executive Committee, or (ii) one or more
duly authorized officers of the Company or the Guarantor, as the case may be, to
whom the Board of Directors of the Company or the Guarantor or a committee
thereof has delegated the authority to act with respect to the matters
contemplated by this Indenture.
"Board Resolution", when used with reference to either the Company or the
Guarantor, means (i) a copy of a resolution certified by the Corporate
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Secretary or an Assistant Corporate Secretary of the Company or the Guarantor,
as the case may be, to have been duly adopted by the Board of Directors or a
committee thereof and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the authorized officer or officers
of the Company or the Guarantor, as the case may be, to whom the Board of
Directors of the Company or the Guarantor or a committee thereof has delegated
its authority (as described in the definition of Board of Directors), and in
each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means with respect to any Principal Subsidiary, stock of
any class, however designated, except stock which is non-participating beyond
fixed dividend and liquidation preferences and the holders of which have either
no voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Principal Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order", when used with reference to the
Company or the Guarantor, means a written request or order signed in the name of
the Company or of the Guarantor, as the case may be, by (i) any two of the
following individuals: the Chairman, the President, a Vice Chairman, or a Vice
President, or (ii) by one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the Corporate Secretary or an
Assistant Corporate Secretary or any other individual authorized by the Board of
Directors for such purpose, and delivered to the Trustee.
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"Corporate Trust Office" means the principal office of the Trustee located
at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000 at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1203.
"Debt" means (without duplication and without regard to any portion of
principal amount that has not accrued and to any interest component thereof
(whether accrued or imputed) that is not due and payable) with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business), (v) every
capital lease obligation of such Person, and (vi) every obligation of the type
referred to in clauses (i) through (v) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or provision,
specified in or pursuant to a Board Resolution or an indenture supplemental
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hereto, providing for the determination, whether pursuant to objective factors
or pursuant to the sole discretion of any Person (including the Company), and
periodic adjustment of the interest rate borne by a Floating or Adjustable Rate
Security.
"Floating or Adjustable Rate Security" means any Security which provides
for interest thereon at a periodic rate that may vary from time to time over the
term thereof in accordance with a Floating or Adjustable Rate Provision.
"Foreign Government Obligations" has the meaning specified in Section
1204.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
guarantee set forth in Section 1501.
"Guaranteed Obligations" shall have the meaning set forth in Section
1501.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor Junior Subordinated Payment" has the meaning specified in
Section 1602.
"Guarantor Proceeding" has the meaning specified in Section 1602.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
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The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Junior Subordinated Payment" has the meaning specified in Section
1402.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-Recourse Debt" means any indebtedness for money borrowed as to which
the liability of the Guarantor, the Company or the Principal Subsidiaries is
limited solely to specific assets.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" when used with respect to the Company or the
Guarantor, means a certificate signed by (i) any two of the following
individuals: the Chairman, the President, a Vice Chairman or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President, the
Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary, of the Company or the Guarantor, as the case may be, or any
other individual authorized by the Board of Directors of the Company or the
Guarantor, as the case may be, for such purpose, and delivered to the Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
1004 shall be the principal executive, financial or accounting officer of the
Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or the Guarantor, as the case may be, or
who may be other counsel reasonably satisfactory to the Trustee. Each such
opinion shall include the statements required by Section 314(e) of the Trust
Indenture Act, if applicable.
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"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or the Guarantor) in trust
or set aside and segregated in trust by the Company or the Guarantor
(if the Company or the Guarantor shall act as Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1202; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
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equivalent on the date of original issuance of such Security of the amount
determined as provided in (A) above) of such Security, and (C) Securities owned
by the Company, the Guarantor or any other obligor upon the Securities or any
Subsidiary of the Company or the Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, the
Guarantor or any other obligor upon the Securities or any Subsidiary of the
Company, the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Subsidiary" means only Aetna Life Insurance Company, Aetna Life
Insurance and Annuity Company and U.S. Healthcare, Inc., and any other
Subsidiary of the Guarantor which shall hereafter succeed by merger or otherwise
to a major part of the business of one or more of the Principal Subsidiaries.
The decision as to whether a Subsidiary shall have succeeded to a major part of
the business of one or more of the Principal Subsidiaries shall be made in good
faith by the Board of Directors of the Guarantor or a committee thereof by the
adoption of a resolution so stating, and the Guarantor shall within 30 days of
the date of the
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adoption of such resolution deliver to the Trustee a copy thereof, certified by
the Corporate Secretary or an Assistant Corporate Secretary of the Guarantor.
"Proceeding" has the meaning specified in Section 1402.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" with respect to any Person means the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to such
Person to the extent that such claim for post-petition interest is allowed in
such proceeding), on Debt of such Person, whether incurred on or prior to the
date of this Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are
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not superior in right of payment to the Securities, in the case of the Company,
or the Guarantees, in the case of the Guarantor, or to other Debt of such Person
which is pari passu with, or subordinated to the Securities, in the case of the
Company, or the Guarantees, in the case of the Guarantor; provided, however,
that Senior Debt shall not be deemed to include (1) in the case of the Company,
the Securities, (2) in the case of the Guarantor, the Guarantees or (3) any
other debt securities or guarantees in respect thereof issued to any other
trusts, partnerships or other entity affiliated with the company or the
Guarantor which is a financing vehicle of the Company or the Guarantor
("Financing Entity") in connection with the issuance of preferred securities of
such Financing Entity, including, without limitation, indebtedness of the
Company and the Guarantor's guarantee in respect thereof issued to Aetna Capital
L.L.C. pursuant to that certain Indenture dated as of November 1, 1994 between
Aetna Services, Inc. and The First National Bank of Chicago, as trustee, as
amended by the First Indenture Supplement dated August 1, 1996 among Aetna
Services, Inc., Aetna Inc. and The First National Bank of Chicago, as trustee.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation more than 50% of the voting
power of which is controlled, directly or indirectly, by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more
other Subsidiaries of such Person. For the purposes of this definition, "voting
power" means the power to vote for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
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Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
1204.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor, as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company or the Guarantor, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (excluding certificates provided for
in Section 1004) shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or the
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor, as the
case may be, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or firm
of accountants in the employ of the Company or the Guarantor, as the case may
be, unless such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representation with respect to such accounting matters upon which its
certificate, statement or opinion may be based is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
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appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company or the Guarantor may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Outstanding Securities of such series. If not set by the
Company or the Guarantor prior to the first solicitation of a Holder of
Securities of such series made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any record date
for action to be taken by the Holders of one or more series of Securities, only
the Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register
or by a certificate of the Security Registrar.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
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same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, in
the case of the Company, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in
the first paragraph of this instrument, Attention: Treasurer, or at
any other address previously furnished in writing to the Trustee by
the Company, with a copy to the Guarantor, and, in the case of the
Guarantor, first-class postage prepaid and addressed to it at the
address of its principal office specified in the first paragraph of
this instrument, Attention:
Treasurer, or at any other address previously furnished in writing
to the Trustee by the Guarantor, with a copy to the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such
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event, at its address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice; provided, however, that the Company,
the Guarantor or the Trustee, upon a good faith determination that mailing is in
the circumstances impractical, may give such notice by any other method which,
in the reasonable belief of the Company or the Guarantor or, in the case of the
Trustee, of the Company, the Guarantor and the Trustee, is likely to be received
by the Holders. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind their successors and assigns, whether so expressed or not.
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Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or in the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in the Guarantees,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders and, to the extent specifically set
forth herein, the holders of Senior Debt of the Company or the Guarantor, as the
case may be, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112. Governing Law.
This Indenture and the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York, but without
regard to principles of conflicts of laws.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be.
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Section 114. Personal Immunity from Liability for Incorporators,
Stockholders, Etc.
No recourse shall be had for the payment of the principal of or premium,
if any, or interest, if any, on any Security, or for any claim based thereon, or
otherwise in respect of any Security or of the Guarantees, or based on or in
respect of this Indenture or any indenture supplemental hereto, against any
incorporator, or against any past, present or future stockholder, director or
officer, as such, of the Company or of any successor corporation, or of the
Guarantor or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being expressly waived and released as
a condition of, and as consideration for, the execution of this Indenture and
the issue of the Securities and the Guarantees.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution of the Company or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistent herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Corporate Secretary or an
Assistant Corporate Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Guarantees by the Guarantor to be endorsed on the Securities of each
series shall be substantially in such form set forth in Section 206, or in such
other form as shall be established by or pursuant to a Board Resolution of the
Guarantor, or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are
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required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Guarantees,
all as evidenced by such execution. If the form of Guarantees to be endorsed on
the Securities of any series is established by action taken pursuant to a Board
Resolution of the Guarantor, a copy of an appropriate record of such action
shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Guarantor and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities and the Guarantees shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
[AETNA LIFE AND CASUALTY COMPANY]
[AETNA SERVICES, INC.]
[...%] GUARANTEED SUBORDINATED [ZERO
COUPON][NOTE][DEBENTURE]DUE...
No. ......... [$] ........
AETNA LIFE AND CASUALTY COMPANY, [AETNA SERVICES, INC.], a Connecticut
corporation (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to .............................................., or registered
assigns, the principal sum of ................ ................... [Dollars] [if
other than Dollars, substitute other currency or currency units] [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, [semi-annually on
............ and ............ in each year] [If other than semi-annual payments,
insert frequency of payments and payment dates], commencing ........., at [If
the Security is to bear interest at a fixed rate, insert -- the rate of ....%
per annum [If the Security is a Floating or Adjustable Rate
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Security, insert -- a rate per annum [computed-determined] in accordance with
the [insert defined name of Floating or Adjustable Rate Provision] set forth
below] [If the security is to bear interest at a rate determined with reference
to an index, refer to description of index below] until the principal hereof is
paid or made available for payment [if applicable, insert -- , and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of ....% per annum on any overdue principal and premium and on any overdue
instalment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ....... or ....... (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
[If the Securities are Floating or Adjustable Rate Securities with respect
to which the principal of or any premium or interest may be determined with
reference to an index, insert the text of the Floating or Adjustable Rate
Provision.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment
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to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any such interest
on any overdue principal that is not so paid on demand shall bear interest at
the rate of ......% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such demand
for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, in such coin
or currency [of the United States of America] [if the Security is denominated in
a currency other than U.S. dollars, specify other currency or currency unit in
which payment of the principal of and any premium or interest may be made] as at
the time of payment is legal tender for payment of public and private debts [if
applicable, insert -- ; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
[AETNA LIFE AND CASUALTY
COMPANY]
[AETNA SERVICES, INC.]
By______________________
[Seal]
Attest:
...........................
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Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1996 (herein called the
"Indenture"), among the Company, as Issuer, Aetna Inc., as Guarantor (herein
called the "Guarantor") and ..................., as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the Holders
of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to [$]...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice by mail,
[if applicable, insert -- (1) on ........... in any year commencing with the
year ...... and ending with the year ...... through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ............], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before ...............,
....%, and if redeemed] during the 12-month period beginning ............. of
the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.] [If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' nor more than 60 days' notice by mail,
(1) on ............ in any year commencing with the year .... and ending with
the year .... through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the
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principal amount) set forth in the table below, and (2) at any time [on or after
............], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ............ of the
years indicated,
Redemption Price
Redemption Price For Redemption
For Redemption Otherwise Than
Through Operation Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
............ in each year beginning with the year ....... and ending with the
year ...... of [not less than] [$].......... [("mandatory sinking fund") and not
more than [$].........] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of (1) the
entire indebtedness of this Security or (2) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
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[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company or the Guarantor or both, with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and [rate-rates], and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on
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this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$]....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture provides that the Company and the Guarantor, at the
Company's option, (a) will be discharged from any and all obligations in respect
of the Securities (except for certain obligations to register the transfer or
exchange of Securities, replace stolen, lost or mutilated Securities, maintain
paying agencies and hold moneys for payment in trust) or (b) need not comply
with certain restrictive covenants of the Indenture, in each case if the Company
or the Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or Foreign Government Obligations if the Securities are denominated
in a foreign currency or currencies) which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
in an amount sufficient to pay all the principal (including any mandatory
sinking fund payments) of, and (premium, if any) and interest on, the Securities
on the dates such payments are due in accordance with the terms of such
Securities and Guarantees, and certain other conditions are satisfied.
No recourse shall be had for the payment of the principal of (and premium,
if any) or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof or of the Guarantee endorsed hereon, or based on or
in respect of
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the Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, or of the Guarantor or of any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other legends as may be
required:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered
in the name of, any Person other than the Depositary or a nominee
thereof and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, this Security shall be a Global Security
subject to the foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
.............................,
As Trustee
By...........................
Authorized Officer
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Section 206. Form of Guarantee.
Guarantees to be endorsed on the Securities shall, subject to Section 201,
be in substantially the form set forth below; words enclosed in brackets shall
be inserted, if applicable:
GUARANTEE
OF
AETNA INC.
Aetna Inc., a Connecticut corporation (herein called the "Guarantor",
which term includes any successor corporation under the Indenture referred to in
the Security upon which this Guarantee is endorsed), for value received, hereby
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed the due and punctual payment of the principal of, premium,
if any, and interest on said Security [and the due and punctual payment of the
sinking fund payments provided for herein], when and as the same shall become
due and payable, whether at the Stated Maturity or upon declaration of
acceleration, call for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the failure of [Aetna Life
and Casualty Company] [Aetna Services, Inc.], a Connecticut corporation (herein
called the "Company", which term includes any successor corporation under such
Indenture) punctually to make any such payment of principal, premium or interest
[or sinking fund payment], the Guarantor hereby agrees to pay or to cause any
such payment to be made punctually when and as the same shall become due and
payable, whether at Stated Maturity or upon declaration of acceleration, call
for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if it
were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, the validity,
legality or enforceability of said Security or the Indenture, or the absence of
any action to enforce the same, or any waiver, modification, indulgence or
consent granted to the Company with respect thereto, by the Holder of said
Security or by the Trustee, the recovery of any judgment against the Company or
any action to enforce the same or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor;
provided, however, that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of said Security or the interest rate thereon or increase
any premium payable upon redemption thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of bankruptcy of the Company, any right of set-
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off or to counterclaim, any right to require a proceeding first against the
Company, protest or notice with respect to said Security or the indebtedness
evidenced thereby [or with respect to any sinking fund payment required under
said Security] and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by payment in full of the principal of, and
premium, if any, and interest on said Security.
The Guarantor shall be subrogated to all rights of the Holder against the
Company in respect of any amounts paid to such Holder by the Guarantor pursuant
to the provisions of this Guarantee; provided, however, that the Guarantor shall
not, without the consent of all Holders of all outstanding Securities of this
series issued under the Indenture, be entitled to enforce, or to receive, any
payments arising out of or based upon such right of subrogation until the
principal of, premium, if any, and interest then due and payable on all
Securities of the same series issued under the Indenture shall have been
irrevocably paid in full in accordance with the terms of such Securities.
This Guarantee is a guarantee of payment when due and not of collection.
This Guarantee shall continue to be effective, or be reinstated, as the case may
be, in respect of said Security if at any time payment, or any part thereof, of
said Security is rescinded or must otherwise be restored or returned by the
Holder of said Security or any trustee for said Holder upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or any
other entity, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Company or
any other entity or any substantial part of their respective property, or
otherwise, all as though such payments had not been made.
No reference herein to such Indenture and no provision of this Guarantee
or of such Indenture shall alter or impair the guarantee of the Guarantor, which
is absolute and unconditional, of the due and punctual payment of the principal
of, and premium, if any, and interest on the Security upon which this Guarantee
is endorsed at the times, place and rate, and in the cash or currency prescribed
herein.
The obligations of the Guarantor under this Guarantee are, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of the Guarantor, and this Guarantee is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of the Security on which this Guarantee is endorsed, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the
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subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York, but without regard to principles of conflicts of
laws.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Security shall have been
manually signed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
IN WITNESS WHEREOF, Aetna Inc. has caused the execution hereof in
its corporate name by its duly authorized officers.
AETNA INC.
By__________________
[Seal]
Attest:
-------------------------------
[Assistant] Corporate Secretary
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolutions of the Company and the
Guarantor, as appropriate, and set forth in Officers' Certificates of the
Company
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and the Guarantor, as appropriate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Sections 304,
305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the date
or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(6);
(7) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(8) if applicable, the period or periods within which, the
price or prices at which (including premium, if any) and the terms
and conditions upon which Securities of the series may or are
required to be redeemed or prepaid, in whole or in part, at the
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option of the Company or the Guarantor pursuant to a sinking fund
or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(11) if other than such coin or currency of the United States
of America as at the time is legal tender for payment of public or
private debts, the currency or currencies, including composite
currencies, or currency units in which payment of the principal of
and any premium and interest on any Securities of the series shall
be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for purposes of the
definition of "Outstanding" in Section 101;
(12) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to one or more indices, the manner in which such amounts
shall be determined;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies, including
composite currencies, or currency units other than that or those in
which the Securities are stated to be payable, the currency,
currencies, including composite currencies, or currency units in
which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(14) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
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pursuant to Section 502 or provable under any applicable federal or
state bankruptcy or similar law pursuant to Section 503;
(15) if applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for
such Global Security or Global Securities and any circumstance other
than those set forth in Section 305 in which any such Global
Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered;
(16) any other event or events of default applicable with
respect to the Securities of the series in addition to those
provided in Section 501(1) through (7);
(17) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent
with) those included in this Indenture for the benefit of Securities
of all series, or any other covenant or warranty included for the
benefit of Securities of the series in lieu of any covenant or
warranty included in this Indenture for the benefit of Securities of
all series, or any provision that any covenant or warranty included
in this Indenture for the benefit of Securities of all series shall
not be for the benefit of Securities of the series, or any
combination of such covenants, warranties or provisions;
(18) if other than as set forth in Section 206, the Guarantee
of the Securities of such series pursuant to Article Fifteen hereof;
(19) any restriction or condition on the transferability of
the Securities of the series;
(20) any authenticating or paying agents, registrars or any
other agents with respect to the Securities of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
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All Securities of any one series shall be substantially identical except
as to denomination and number and except as may otherwise be provided in or
pursuant to the Board Resolutions referred to above and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company or the Guarantor, a copy of such action
shall be delivered to the Trustee.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman,
its President, a Vice Chairman, any Vice President, its Treasurer or Assistant
Treasurer, under its corporate seal reproduced thereon attested by its Corporate
Secretary or one of its Assistant Corporate Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
The Guarantees shall be executed on behalf of the Guarantor by its
Chairman, its President, a Vice Chairman, any Vice President, its Treasurer or
Assistant Treasurer, under its corporate seal reproduced thereon and attested by
its Corporate Secretary or one of its Assistant Corporate Secretaries. The
signature of any of these officers on the Guarantees may be manual or facsimile.
The seal of the Company or the Guarantor, as the case may be, may be in
the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Securities bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company or of the Guarantor shall bind the Company or the Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. Minor typographical
and other minor errors in the text of any Security or the Guarantee endorsed
thereon or minor defects in the seal or facsimile signature on any Security or
the Guarantee endorsed thereon shall not affect the validity or enforceability
of such Security or
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such Guaranty if such Security has been duly authenticated and delivered by the
Trustee.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company and having endorsed thereon Guarantees executed by the Guarantor to the
Trustee for authentication, together with a Company Order of the Company for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities having
such Guarantees endorsed thereon. If the form or terms of the Securities of the
series or the form of Guarantees endorsed thereon have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities and Guarantees endorsed
thereon, the Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities and the applicable
Guarantees have been established by or pursuant to Board Resolution
as permitted by Section 201, that such form or forms have been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities and the applicable
Guarantees have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established
in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally or the rights of creditors of insurance companies
generally and to general equity principles; and
(d) that such Guarantees, when the Securities on which such
Guarantees are endorsed are authenticated and delivered by the
Trustee and issued by the Company in the manner and subject
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to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors, executive committee, or a trust committee of
directors or responsible officers of the Trustee shall determine that such
action would expose the Trustee to personal liability to existing Holders of
Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security and the applicable Guarantee shall be dated the date of its
authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and that such Security or Guarantee is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security and
the Guarantee endorsed thereon shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
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Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities substantially of the tenor of the definitive
Securities in lieu of which they are issued and having endorsed thereon
Guarantees of the Guarantor substantially of the tenor of definitive Guarantees,
which Securities and Guarantees may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or such Guarantees may determine, as
evidenced by their execution of such Securities and such Guarantees.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor which have endorsed thereon Guarantees duly
executed by the Guarantor. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it or the Trustee may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
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series, of any authorized denominations and of a like aggregate principal amount
and tenor which have endorsed thereon a Guarantee duly executed by the
Guarantor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, each such Security having endorsed
thereon a Guarantee duly executed by the Guarantor upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Unless otherwise required by the rules of any stock exchange on which the
Securities are listed or of any quotation system through which the Securities
are traded, neither the Company nor the Trustee shall be required (i) to issue,
register the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding any other provision in this Indenture, no Global Security
may be transferred to, or registered or exchanged for Securities registered in
the name of, any Person other than the Depositary for such Global Security or
any
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nominee thereof, and no such transfer may be registered, unless (1) such
Depositary (A) notifies the Company and the Trustee that it is unwilling or
unable to continue as Depositary for such Global Security or (B) ceases to be a
clearing agency registered under the Exchange Act, (2) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, (3) there shall have occurred and be continuing an Event of Default
with respect to the Securities evidenced by such Global Security or (4) there
shall exist such other circumstances, if any, as have been specified for this
purpose as contemplated by Section 301. Notwithstanding any other provision in
this Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to, and
may be registered and exchanged for Securities registered only in the name or
names of, such Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such a transfer may be
registered.
Every Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security to which the restriction
set forth in the first sentence of the preceding paragraph shall apply, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If there shall be delivered to the Company and the Trustee (i) a mutilated
Security, or (ii) evidence to their satisfaction of the destruction, loss or
theft of any Security and in either case such security or indemnity as may be
required by either of them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount having endorsed thereon a Guarantee duly
executed by the Guarantor, and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company or
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantor, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than
15 days and not
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less than 10 days prior to the date of the proposed payment and not
less than 15 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at its address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
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No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company or the Guarantor may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order. Acquisition by the Company or the Guarantor of any
Security shall not operate as a redemption or satisfaction of the indebtedness
represented by such Security unless and until the same is delivered to the
Trustee for cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months and, for any
period shorter than a full monthly period, shall be computed on the basis of the
actual number of days elapsed in such period.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities of a series herein expressly provided for) with respect to Securities
of any series and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to a series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company or the Guarantor and thereafter repaid to
the Company or the Guarantor or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee in
trust for the purpose (A) money (either in United States dollars or
such other currency or currency unit in which the Securities of any
series may be payable) in an amount, or (B) U.S. Government
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Obligations (or Foreign Government Obligations if the Securities are
denominated in a foreign currency or currencies) that through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient to pay and discharge the entire
indebtedness on such Securities of such series not theretofore
delivered to the Trustee for cancellation, for principal of (and
premium, if any) and interest to the date of such deposit (in the
case of Securities of such series which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such
series have been complied with.
In the event there are Securities of two or more series outstanding
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of a particular series as to which it is Trustee and if
the other conditions thereto are met. In the event that there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a particular series, the obligations of the Company and the Guarantor
to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive until there are no Securities Outstanding with respect to a
particular series and the obligations of the Company, the Guarantor and the
Trustee with respect to all other series of Securities shall survive.
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Section 402. Application of Trust Fund.
Subject to provisions of the last paragraph of Section 1003, all amounts
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such funds have been deposited with the
Trustee. Money deposited pursuant to this Section not in violation of this
Indenture shall not be subject to claims of the holders of Senior Debt of the
Company under Article Fourteen or of the holders of Senior Debt of the Guarantor
under Article Sixteen.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default" whenever used with respect to Securities of a series
means any one of the following events and such other events as may be
established with respect to the Securities of such series as contemplated by
Section 301 hereof (whether or not it shall be occasioned by the provisions of
Article Fourteen or Article Sixteen):
(1) Default in the payment of any instalment of interest upon
any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) Default in the payment of the principal of or premium, if
any, on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
(3) Default in the making of any sinking fund payment, whether
mandatory or optional, as and when the same shall become due and
payable by the terms of the Securities of such series; or
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(4) Failure on the part of the Company or the Guarantor duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of the Company or the Guarantor
contained in this Indenture (other than those set forth exclusively
in the terms of any other particular series of Securities
established as contemplated by this Indenture for the benefit of
such other series) and written notice of such failure, stating that
such notice is a "Notice of Default" hereunder, and requiring the
Company or the Guarantor, as the case may be, to remedy the same,
shall have been given by registered or certified mail, return
receipt requested, to the Company and the Guarantor by the Trustee,
or to the Company, the Guarantor and the Trustee by the holders of
at least 25% in aggregate principal amount of the Outstanding
Securities of that series, and such failure shall have continued
unremedied for a period of 90 days after the date of the Company's
and the Guarantor's receipt of such Notice of Default; or
(5) An event of default, as defined in any indenture or
instrument evidencing or under which the Company, the Guarantor or
any Principal Subsidiary shall have outstanding indebtedness for
borrowed money in a principal amount in excess of $50,000,000, shall
happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable
prior to the date on which the same would otherwise have become due
and payable (other than acceleration of Non-Recourse Debt which does
not exceed in the aggregate 4% of the Guarantor's total
shareholders' equity, as set forth in the most recently published
audited consolidated balance sheet of the Guarantor) or the Company,
the Guarantor or any Principal Subsidiary shall default in the
payment at final maturity of outstanding indebtedness for borrowed
money in a principal amount in excess of $50,000,000 (other than
default in payment at final maturity of Non-Recourse Debt which does
not exceed in the aggregate 4% of the Guarantor's total
shareholders' equity as set forth in the most recently published
audited consolidated balance sheet of the Guarantor), and such
acceleration or default at maturity shall not be waived, rescinded
or annulled within 30 days after written notice thereof, stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the Company and the Guarantor by the Trustee (if such event
be known to it), or to the Company, the Guarantor and the Trustee by
the holders of at least 25% in aggregate principal amount of the
Outstanding Securities of
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that series; provided, however, that if such acceleration under such
indenture or instrument or default at maturity shall be remedied or
cured by the Company, the Guarantor or Principal Subsidiary, or
waived, rescinded or annulled by the requisite holders of such
indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or
any of the Holders; and provided further, that, subject to the
provisions of Sections 601 and 602, the Trustee shall not be charged
with knowledge of any such default unless written notice thereof
shall have been given to the Trustee by the Company or the
Guarantor, as the case may be, by the holder of any such
indebtedness or an agent of the holder of any such indebtedness, by
the trustee then acting under any such indenture or other instrument
under which such default shall have occurred, or by the holders of
at least 25% in aggregate principal amount of the Outstanding
Securities of that series; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company or the
Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of the Company or the Guarantor under any applicable
Federal or State bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a period of 90
days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, trustee,
assignee, sequestrator or similar official in bankruptcy or
insolvency of the Company or the Guarantor or of all or
substantially all of the Company's or the Guarantor's property, or
for the winding up or liquidation of the Company's or the
Guarantor's affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed for a period of
90 days; or
(7) The Company or the Guarantor shall institute proceedings
to be adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization, arrangement,
adjustment or composition under any applicable Federal or State
bankruptcy or similar law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar
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official in bankruptcy or insolvency of the Company or the Guarantor
or of all or substantially all of the Company's or the Guarantor's
property, or shall make an assignment for the benefit of creditors,
or either the Company or the Guarantor shall admit in writing its
inability to pay its debts generally as they become due and its
willingness to be adjudged a bankrupt, or corporate action shall be
taken by the Company or the Guarantor in furtherance of any of the
aforesaid purposes.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the holders of Outstanding Securities of such series entitled to
join in such Notice of Default, which record date shall be the close of business
on the day the Trustee receives such Notice of Default. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided that, unless such Notice of Default shall have become effective
by virtue of Holders of at least 25% in principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
Notice of Default shall automatically and without any action by any Person be
cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a Notice of Default contrary to or different
from, or, after the expiration of such period, identical to, a Notice of Default
that has been cancelled pursuant to the proviso to the preceding sentence, in
which event a new record date in respect thereof shall be set pursuant to this
paragraph.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company and the Guarantor (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and all accrued interest thereon shall become
immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel except such
costs and expenses as are a result of negligence or bad faith
on the part of the Trustee;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest,
if any, on the Securities of that series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502
with respect to Securities of any series, a record date shall automatically and
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without any other action by any Person be set for the purpose of determining the
Holders of Outstanding Securities of such series entitled to join in such
declaration, or rescission and annulment, as the case may be, which record date
shall be the close of business on the day the Trustee receives such declaration,
or rescission and annulment, as the case may be. The Holders of Outstanding
Securities of such series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to join in such declaration, or
rescission and annulment, as the case may be, whether or not such Holders remain
Holders after such record date; provided that, unless such declaration, or
rescission and annulment, as the case may be, shall have become effective by
virtue of Holders of at least 25%, in the case of any declaration of
acceleration, or a majority, in the case of any rescission or annulment, in
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
day after such record date, such declaration, or rescission and annulment, as
the case may be, shall automatically and without any action by any Person be
cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a declaration of acceleration, or a rescission
and annulment of any such declaration, contrary to or different from, or, after
the expiration of such period, identical to, a declaration, or rescission and
annulment, as the case may be, that has been cancelled pursuant to the proviso
to the preceding sentence, in which event a new record date in respect thereof
shall be set pursuant to this paragraph.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel except such costs and expenses, as are a result of
negligence or bad faith on the part of the Trustee. Until such demand is made by
the Trustee, the Company may pay the principal of and premium, if any, and
interest, if any, on the Securities of any series to the Holders thereof,
whether or not the Securities of such series are overdue.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, the Guarantor or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, the Guarantor
or any other obligor upon the Securities or the property of the Company, the
Guarantor or such other obligor or their creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities in accordance with the terms thereof and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607 except such costs and expenses, as are
a result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel except such costs and expenses,
as are a result of negligence or bad faith on the part of the Trustee, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Subject to Article Fourteen and Article Sixteen, any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of
the
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Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory in form and substance to the
Trustee against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
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of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantor, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to Section 507, every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall be set for determining the Holders
of Outstanding Securities of such series entitled to join in such direction,
which record date shall be the close of business on the day the Trustee receives
such direction. The Holders of Outstanding Securities of such series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided that, unless such direction shall have become
effective by virtue of Holders of at least a majority in principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents) having joined therein on or prior to the 90th day after such
record date, such direction shall automatically and without any action by any
Person be cancelled and of no further effect. Nothing in this paragraph shall
prevent a Holder (or a duly appointed agent thereof) from giving, before or
after the expiration of such 90-day period, a direction contrary to or different
from, or, after the expiration of such period, identical to, a direction that
has been cancelled pursuant to the proviso to the preceding sentence, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
With respect to any series of Securities, the Company or the Guarantor
may, but shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to waive any past default hereunder. If a
record date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to waive any default
hereunder, whether or not such Holders remain Holders after such record date;
provided, however, that unless such Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Guarantor.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the
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Board of Directors of the Company or the Guarantor may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory in form and substance
to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(f) prior to the occurrence of an Event of Default and after
the remedy or waiver of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall upon reasonable notice to the Company and
the Guarantor be entitled to examine the books, records and premises
of the Company and the Guarantor, personally or by agent or attorney
at a time and place acceptable to the Company or the Guarantor, as
the case may be; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
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for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantor, as the case may be, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or of the Guarantees. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company or the Guarantor, as the case may be.
Section 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its written request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture
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(including the reasonable compensation, and reasonable expenses and
disbursements of its agents and outside counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 or is a subsidiary of a
corporation which shall be a Person that has a combined capital and surplus of
at least $50,000,000 and which unconditionally guarantees the obligations of the
Trustee hereunder. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or the Guarantor or by any
Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and
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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 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the Guarantor and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, to the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
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Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to transfer
the rights, powers, trust and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustee
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company and the Guarantor or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraphs (a) and (b) of this Section, as the case may
be.
(d) No successor shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the
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Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company or
Guarantor.
If and when the Trustee shall be or become a creditor of the Company, the
Guarantor or any other obligor upon the Securities, the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company, the Guarantor or any such other obligor.
Section 614. Appointment of Authenticating Agent.
The Trustee may with the consent of the Company appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the
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provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee or the Company may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company or the Trustee, as the
case may be. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
..........................................,
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As Trustee
By.........................................,
As Authenticating Agent
By.........................................,
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 701. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders.
The Company and the Guarantor will furnish or cause to be furnished to
the Trustee
(a) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the
preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company or the Guarantor of
any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee that none of the Company, the
Guarantor, the Trustee or any agent of any of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. To
the extent that any such report is required by the Trust Indenture Act with
respect to any 12 month period, such report shall cover the 12 month period
ending July 15 and shall be transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company and the
Guarantor. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
Section 704. Reports by Company and Guarantor.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or sell its properties and assets as, or substantially as, an
entirety to any Person, and neither the Company nor the Guarantor shall permit
any Person to consolidate with or merge into the Company or the Guarantor, as
the case may be, unless:
(i) in case the Company or the Guarantor, as the case may be,
shall consolidate with or merge into another Person (including,
without limitation, the Guarantor or the Company, as the case may
be), or sell its properties and assets as, or substantially as, an
entirety to any Person (including, without limitation, the Guarantor
or the Company, as the case may be), the Person formed by such
consolidation or into which the Company or the Guarantor, as the
case may be, is merged or the Person which purchases the properties
and assets of the Company or the Guarantor, as the case may be, as,
or substantially, as an entirety shall be a corporation, partnership
or trust, shall be organized and validly existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, in the case of any such transaction involving the Company,
the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed, and, in the case of any such transaction
involving the Guarantor, the due and punctual performance of the
Guarantees and the performance or observance of every covenant of
this Indenture on the part of the Guarantor to be performed or
observed, in each case by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company or the Guarantor, as the case may
be) formed by such consolidation or into which the Company or the
Guarantor, as the case may be, shall have been merged or by the
corporation which shall have acquired the assets of the Company or
the Guarantor, as the case may be;
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(2) immediately after giving effect to such transaction, no
Event of Default shall have happened and be continuing; and
(3) the Company or the Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, or sale and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company or the Guarantor, as the case may
be, with, or merger of the Company or the Guarantor, as the case may be, into,
any other Person or any sale of the properties and assets of the Company or the
Guarantor, as the case may be, as, or substantially as, an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company or the Guarantor, as the case may be, is merged or to
which such sale is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the case may
be, under this Indenture with the same effect as if such successor Person had
been named as the Company or the Guarantor, as the case may be, herein, and
thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities or the Guarantees, as the case
may be.
Section 803. Assumption by Guarantor or Subsidiary of Company's
Obligations.
The Guarantor or any Subsidiary of the Guarantor may, where permitted by
law, assume the obligations of the Company (or any Person which shall have
previously assumed the obligations of the Company) for the due and punctual
payment of the principal of (and any premium), interest on and any other
payments with respect to the Securities and the performance of every covenant of
this Indenture and the Securities on the part of the Company (or such other
Person) to be performed or observed, provided that:
(1) the Guarantor or such Subsidiary, as the case may be,
shall expressly assume such obligations by an indenture supplemental
hereto, in form reasonably satisfactory to the Trustee, executed and
delivered to the Trustee and if such Subsidiary assumed such
obligations, the Guarantor shall, by such supplemental indenture,
confirm that its Guarantees shall apply to
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such Subsidiary's obligations under the Securities and this
Indenture, as modified by such supplemental indenture;
(2) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing;
(3) the Guarantor or such Subsidiary, as the case may be,
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such assumption and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with;
(4) such assumption shall not result in adverse tax
consequences to any Holder; and
(5) the Guarantor and/or such Subsidiary shall have delivered
to the Trustee an Opinion of Counsel to the effect that (1) the
Securities are legal, valid and binding obligations of the assuming
corporation enforceable against the assuming corporation in
accordance with their terms subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and the rights of creditors of insurance companies
generally, and (b) general principles of equity (regardless of
whether considered in a proceeding at law or in equity) and (2) if a
Subsidiary of the Guarantor is the assuming corporation, the
Guarantees continue to be the legal, valid and binding obligations
of the Guarantor enforceable against the Guarantor in accordance
with their terms subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and the rights of creditors of insurance companies
generally and (b) general principles of equity (regarding whether
considered in a proceeding at law or in equity).
Upon any such assumption, the Guarantor or such Subsidiary shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if the Guarantor or such
Subsidiary, as the case may be, had been named as the "Company" herein, and the
Person named as the "Company" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the manner
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prescribed in this Article shall be released from its liability as obligor upon
the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor herein and in the
Securities or Guarantees; or
(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or
the Guarantor; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or
not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
including, without limitation, with respect to any of the provisions
set forth in Articles Fourteen, Fifteen and Sixteen provided that
any such addition, change or elimination (i) shall neither (A) apply
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to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1005, or to otherwise secure the Securities of any series or
the Guarantees; or
(7) to establish the form or terms of Securities of any series
or the form of Guarantees as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect;
or
(10) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority of principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
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(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon
(including any change in the Floating or Adjustable Rate Provision
pursuant to which such rate is determined that would reduce such
rate for any period) or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the
provisions of this Indenture with respect to the subordination of
the Securities of any series or the subordination of the Guarantees
of such Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 907, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding
Security affected thereby, provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes
in this Section and Section 907, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8), or
(4) modify or affect in any manner adverse to the interests of
the Holders of any Securities the terms and conditions of the
obligations of the Guarantor in respect of the due and punctual
payment of the principal thereof, premium, if any, and interest, if
any, thereon or any sinking fund payments provided in respect
thereof.
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the Guarantor, to any
such supplemental
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indenture may be prepared and executed by the Company, the Guarantees endorsed
thereon may be executed by the Guarantor and such Securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 907. Waiver of Compliance by Holders.
Anything in this Indenture to the contrary notwithstanding, any of the
acts which the Company or the Guarantor is required to do, or is prohibited from
doing, by any of the provisions of this Indenture may, to the extent that such
provisions might be changed or eliminated by a supplemental indenture pursuant
to Section 902 upon consent of holders of not less than a majority in aggregate
principal amount of the then Outstanding Securities of the series affected, be
omitted or done by the Company or the Guarantor, as the case may be, if there is
obtained the prior consent or waiver of the holders of at least a majority in
aggregate principal amount of the then Outstanding Securities of such series.
Section 908. Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Debt of the Company or of Senior Debt of the
Guarantor shall be effective against holders of such Senior Debt without the
consent of any such affected holder.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency by Company and
Guarantor.
(a) So long as any Securities are Outstanding, the Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
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Securities of that series may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
(b) So long as any Securities are Outstanding, the Guarantor will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment under the
Guarantees endorsed thereon and where notices and demands to or upon the
Guarantor in respect of the Guarantees endorsed on the Securities of that series
and this Indenture may be served. The Guarantor will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Guarantor shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for such purpose or where such notices or demands may be served
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Guarantor will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
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Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company or the Guarantor, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company or the Guarantor, as the case may be, on
Company Request, or (if then held by the Company or the Guarantor) shall be
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discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company or the Guarantor for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company or the Guarantor
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company or
the Guarantor, as the case may be.
Section 1004. Statement by Officers as to Default.
The Company and the Guarantor will each deliver to the Trustee within 120
days after the end of each fiscal year of the Guarantor ending after the date
hereof, a certificate signed by the Company's or the Guarantor's, as the case
may be, principal executive officer, principal financial officer or principal
accounting officer stating whether or not to the best knowledge of the signer
thereof the Company or the Guarantor, as the case may be, is in compliance with
all terms, conditions and covenants of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the signer
has obtained knowledge of any continuing default by the Company or the Guarantor
in the performance, observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
Section 1005. Limitations on Liens on Common Stock of Principal
Subsidiaries.
As long as any of the Securities remains outstanding, the Guarantor will
not, and will not permit any Principal Subsidiary to, issue, assume, incur or
guarantee any indebtedness for borrowed money secured by a mortgage, pledge,
lien or other encumbrance, directly or indirectly, on any of the Common Stock of
a Principal Subsidiary, which Common Stock is owned by the Guarantor, by the
Company or by any Principal Subsidiary, unless the obligations of the Company
under the Securities and, if the Company or the Guarantor so elects, any other
indebtedness of the Company or the Guarantor ranking on a parity with or prior
to the Securities or the Guarantor's obligations under the Guarantees, as the
case may be, shall be secured equally and ratably with, or prior to, such
secured indebtedness for borrowed money so long as it is outstanding and is so
secured.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at its address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at any time, to have either Section 1202 or Section
1203 applied to the Outstanding Securities of any series and the Guarantees
endorsed thereon, upon compliance with the conditions set forth below in this
Article Twelve.
Section 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1201 to have
this Section 1202 applied to the Outstanding Securities of any series and the
Guarantees endorsed thereon, the Company and the Guarantor shall each be deemed
to have been discharged from its obligations, and the provisions of Article
Fourteen and Article Sixteen shall cease to be effective, with respect to the
Outstanding Securities of such series and the Guarantees endorsed thereon as
provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and the Guarantees endorsed thereon and to have
satisfied all their other obligations under the Securities of such series, the
Guarantees endorsed thereon and this Indenture insofar as the Securities of such
series and the Guarantees endorsed thereon are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of Securities of such series
to receive, solely from the trust fund described in Section 1204 and as more
fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(2) the Company's or the Guarantor's obligations, as the case may be, with
respect to the Securities of such series under Sections 304, 305, 306, 1002 and
1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, its rights under Section 607 and (4)
this Article Twelve. Subject to compliance with this Article Twelve, the Company
may exercise its option provided in Section 1201 to have this Section 1202
applied to the Outstanding Securities of any series and the Guarantees endorsed
thereon notwithstanding the prior exercise of its option provided in Section
1201 to have
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Section 1203 applied to the Outstanding Securities of such series and the
Guarantees endorsed thereon.
Section 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1201 to have
this Section 1203 applied to the Outstanding Securities of any series and the
Guarantees endorsed thereon, (1) the Guarantor shall be released from its
obligations under Section 1005 and the Company and the Guarantor shall be
released from their obligations under Section 801 and (2) the occurrence of any
event specified in Sections 501(3), 501(4) (with respect to Section 1005 and
Section 801) and 501(5) shall be deemed not to be or result in an Event of
Default, and (3) the provisions of Article Fourteen and Article Sixteen shall
cease to be effective, in each case with respect to the Outstanding Securities
of such series as provided in this Section on and after the date the conditions
set forth in Section 1204 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that the Company
and the Guarantor may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities of any series:
(1) The Company or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee that satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) in the case of Securities of such
series denominated in U.S. dollars, (i) money in an amount, or (ii)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof,
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in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series or (B) in the case of
Securities of such series denominated in a currency other than the
U.S. dollar, (i) money in such currency in an amount, or (ii)
Foreign Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in such currency in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of
such series on the respective Stated Maturities, in accordance with
the terms of this Indenture and the Securities of such series. As
used herein, (1) "U.S. Government Obligation" means (x) any security
that is (i) a direct obligation of the United States of America for
the payment of which full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality for the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y)
any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any specific payment of principal of or interest on any
such U.S. Government Obligation specified in Clause (x) and held by
such custodian for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or
interest on any such U.S. Government Obligation, provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the Holder of such
depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt and (2)
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"Foreign Government Obligation" means (x) any security that is (i) a
direct obligation of the government that issued such currency for
the payment of which full faith and credit of such government is
pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality for such government
the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government, which, in either case (i)
or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any specific payment of principal of or
interest on any such Foreign Government Obligation specified in
Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment
of principal of or interest on any such Foreign Government
Obligation, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to
the Holder of such depositary receipt from any amount received by
the custodian in respect of the Foreign Government Obligation or the
specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with
respect to the Securities of such series and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holder of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes as
result of the deposit and Covenant Defeasance to be effected with
respect to the Securities of such series and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
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(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(5) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have
occurred and be continuing at the time of such deposit or, with
regard to any Event of Default or any such event specified in
Sections 501(6) and 501(7), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(6) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be qualified under such Act or
exempt from regulation thereunder.
(8) At the time of such deposit: (A) no default in the payment
of principal of (or premium, if any) or interest on any Senior Debt
of the Company or Senior Debt of the Guarantor shall have occurred
and be continuing or (B) no other event of default with respect to
any Senior Debt of the Company or Senior Debt of the Guarantor shall
have occurred and be continuing and shall have resulted in such
Senior Debt of the Company or Senior Debt of the Guarantor becoming
or being declared due and payable prior to the date on which it
would otherwise have become due and payable, or, in the case of
either Clause (A) or Clause (B) above, each such default or event of
default shall have been cured or waived or shall have ceased to
exist.
Section 1205. Deposited Money and U.S. Government Obligations or
Foreign Government Obligations to be Held In Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations or Foreign Government Obligations (including
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the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1206, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
1204 in respect of the Securities of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of
such series and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company or the Guarantor acting as its own
Paying Agent) as the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of principal and
any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law. Money so held in trust shall
not be subject to the provisions of Article Fourteen or of Article Sixteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge that by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company or the Guarantor, as the case may
be, from time to time upon Company Request any money or U.S. Government
Obligations or Foreign Government Obligations held by it as provided in Section
1204 with respect to Securities of any series that, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Defeasance or Covenant Defeasance with respect to the Securities of
such series and the Guarantees endorsed thereon.
Section 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Twelve with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantor's obligations under this Indenture and the
Securities of such series and the Guarantees endorsed thereon shall be revived
and reinstated as though no deposit had occurred pursuant to this Article Twelve
with respect to Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
1205 with respect to Securities of such series in accordance with this Article
Twelve; provided, however, that if the
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Company makes any payment of principal of or any premium or interest on any
Security of such series following the reinstatement of its obligations or if the
Guarantor makes any payment in respect thereof pursuant to its Guarantee of such
Securities of such series, the Company or the Guarantor, as the case may be,
shall be subrogated to the rights of the Holders of Securities of such series to
receive such payment from the money so held in trust.
ARTICLE THIRTEEN
Sinking Funds
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been acquired or redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities or otherwise, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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Section 1303. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1302 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 15 nor more than 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Debt of the Company.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Twelve), the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
amounts then due and payable in respect of all Senior Debt of the Company.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc. of the
Company.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, arrangement, reorganization, debt restructuring
or other similar case or proceeding in connection with any insolvency or
bankruptcy proceeding, relative to the Company or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the
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Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding") the holders
of Senior Debt of the Company shall be entitled to receive payment in full of
all amounts due or to become due on or in respect of all Senior Debt of the
Company, or provision shall be made for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt of the
Company, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company
subordinated to the payment of the Securities, such payment or distribution
being hereinafter referred to as "Junior Subordinated Payment"), on account of
principal of (or premium, if any) or interest on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any Subsidiary
of the Company and to that end the holders of Senior Debt of the Company shall
be entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any Junior Subordinated Payment, which may be payable or deliverable
in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt of the Company is paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Debt of the Company remaining unpaid,
to the extent necessary to pay all Senior Debt of the Company in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt of the Company. Any taxes that have been withheld or deducted from
any payment or distribution in respect of the Securities, or any taxes that
ought to have been withheld or deducted from any such payment or distribution
that have been remitted to the relevant taxing authority, shall not be
considered to be an amount that the Trustee or the Holder of any Security
receives for purposes of this Section.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
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deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Debt of the Company to substantially the
same extent as the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section if the Person formed
by such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
Section 1403. Prior Payment to Senior Debt of the Company Upon
Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Debt of the
Company outstanding at the time such Securities so become due and payable shall
be entitled to receive payment in full of all amounts due on or in respect of
such Senior Debt of the Company, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt of the Company, before the Holders of the Securities are entitled to
receive any payment (including any payment which may be payable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities) by the Company on account of the principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities by the Company or any Subsidiary; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Thirteen by delivering and
crediting pursuant to Section 1302 Securities which have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
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The provisions of this Section shall not apply to any payment with respect
to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Debt of the Company in Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt of the
Company, or in the event that any event of default with respect to any Senior
Debt of the Company shall have occurred and be continuing and shall have
resulted in such Senior Debt of the Company becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no payment
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of (or premium,
if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article Thirteen by delivering and crediting pursuant
to Section 1302 Securities which have been acquired (upon redemption or
otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1402 would be applicable.
Section 1405. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1402 or under the conditions
described in Sections 1403 and 1404, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
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payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 1406. Subrogation to Rights of Holders of Senior Debt of the
Company.
Subject to the payment in full of all Senior Debt of the Company, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt of the Company pursuant to the
provisions of this Article (equally and ratably with the holders of all other
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Debt of the Company and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Debt of the Company) to the rights of the holders of such Senior
Debt of the Company to receive payments and distributions of cash, property and
securities of the Company applicable to the Senior Debt of the Company until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. If the Trustee or the Holders of the Securities are not for any reason
entitled to be subrogated to the rights of holders of Senior Debt of the Company
in respect of such payment or distribution, then the Trustee or the Holders of
the Securities may require each holder of Senior Debt of the Company to whom any
such payment or distribution is made as a condition to such payment or
distribution to assign its Senior Debt of the Company to the extent of such
payment or distribution and all rights with respect thereto to the Trustee on
behalf of the Holders. Such assignment shall not be effective until such time as
all Senior Debt of the Company has been paid in full or payment thereof provided
for. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt of
the Company by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt of the Company, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt of the Company.
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Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and 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 Debt of the Company on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Debt of the Company, and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Debt of the
Company, are intended to rank equally with all other general unsecured
obligations of the Company), to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt of the
Company; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt of the Company to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Without limiting the generality of the foregoing, nothing contained in
this Article will restrict the right of the Trustee or the Holders of Securities
of any series to take any action to declare the Securities of such series to be
due and payable prior to their stated maturity pursuant to Section 502 or to
pursue any rights or remedies hereunder.
Section 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of the Company
to enforce subordination as herein provided 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, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
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Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities,
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of the Company, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter or increase, Senior Debt of the Company, or otherwise amend or supplement
in any manner Senior Debt of the Company or any instrument evidencing the same
or any agreement under which Senior Debt of the Company is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt of the Company; (iii) release any Person
liable in any manner for the collection of Senior Debt of the Company; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt of the Company or from any trustee, agent or
representative therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or
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herself to be a holder of Senior Debt of the Company (or a trustee, agent or
representative therefor) to establish that such notice has been given by a
holder of Senior Debt of the Company (or a trustee, agent or representative
therefor). 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 Debt 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 Debt 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 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, 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 Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, 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 the Senior Debt 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.
Section 1412. Trustee Not Fiduciary For Holders of Senior Debt of the
Company.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt of the Company
and shall not be liable to any such holders if it 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 Debt of
the Company shall be entitled by virtue of this Article or otherwise.
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Section 1413. Rights of Trustee as Holder of Senior Debt of the
Company; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of the Company which
may at any time be held by it, to the same extent as any other holder of Senior
Debt of the Company, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
Section 1415. Defeasance of This Article Fourteen.
The subordination of the Securities provided by this Article Fourteen is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Twelve and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance, the Securities then
outstanding shall thereupon cease to be subordinated pursuant to this Article
Fourteen.
ARTICLE FIFTEEN
Guarantee of Securities
Section 1501. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security of each series of the Company authenticated and delivered by the
Trustee or an Authenticating Agent the due and punctual payment of the principal
of (premium, if any) and interest on such Security and the due and punctual
payment of any sinking fund payments provided for pursuant to the terms of such
Security,
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when and as the same shall become due and payable, whether at Stated Maturity,
by declaration of acceleration, call for redemption or otherwise according to
the terms of such Security and of this Indenture (the "Guaranteed Obligations").
In case of default by the Company in the payment of any such principal, premium,
interest or sinking fund payment, the Guarantor agrees duly and punctually to
make any such payment when and as the same shall become due and payable, whether
at the Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company. The Guarantor hereby
agrees that its obligations hereunder shall be as if it were principal debtor
and not merely surety, and shall be absolute and unconditional irrespective of,
and shall be unaffected by, the validity, legality or enforceability of any
Security of any series or this Indenture, the absence of any action to enforce
the same or any waiver, modification or indulgence or consent granted to the
Company with respect thereto by the Holder of any Security of any series or the
Trustee, the recovery of any judgment against the Company or any action to
enforce the same, or any other circumstances which may otherwise constitute a
legal or equitable discharge of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of a
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right of set-off or counterclaim, any right to require a
proceeding first against the Company, protect or notice with respect to any
Security or the indebtedness evidenced thereby or with respect to any sinking
fund payment required pursuant to the terms of a Security issued under this
Indenture and all demands whatsoever, and covenants that this Guarantee will not
be discharged as to any Security except by payment in full of the principal of
(premium, if any) and interest on such Security.
Section 1502. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of a
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not, without the consent of all Holders of Securities
of such series, be entitled to enforce, or to receive, any payments arising out
of or based upon, such right of subrogation until the principal of (and premium,
if any) and interest then due and payable on all Securities of the relevant
series shall have been irrevocably paid in full in accordance with the terms of
such Securities.
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Section 1503. Reinstatement.
The Guarantee of the Guarantor is a guarantee of payment when due and not
of collection. The Guarantee shall continue to be effective, or be reinstated,
as the case may be, in respect of any Security if at any time payment, or any
part thereof, of such Security is rescinded or must otherwise be restored or
returned by the Holder of such Security or any trustee for said Holder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any other entity, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any other entity or any substantial part of their respective
property, or otherwise, all as though such payments had not been made.
Section 1504. Execution and Delivery of Guarantees.
To evidence its guarantee set forth in Section 1501, the Guarantor hereby
agrees to execute, subject to Section 201, the Guarantee in a form established
pursuant to Section 206, to be endorsed on each Security authenticated and
delivered by the Trustee. Each such Guarantee shall be executed by the Guarantor
as provided in Section 303.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor.
ARTICLE SIXTEEN
Subordination of Guarantees
Section 1601. Guarantees Subordinate to Senior Debt of the Guarantor.
The Guarantor covenants and agrees, and each Holder of a Security, by its
acceptance of the Securities, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Twelve), all obligations of the Guarantor
under the Guarantees are hereby expressly made subordinate and subject in right
of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt of the Guarantor.
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Section 1602. Payment Over of Proceeds Upon Dissolution, Etc. of the
Guarantor.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, arrangement, reorganization, debt restructuring
or other similar case or proceeding in connection with any insolvency or
bankruptcy proceeding, relative to the Guarantor or to its assets, or (b) any
liquidation, dissolution or other winding up of the Guarantor, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Guarantor, then and in any such event specified in (a), (b)
or (c) above (each such event, if any, herein sometimes referred to as a
"Guarantor Proceeding") the holders of Senior Debt of the Guarantor shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt of the Guarantor, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Guarantor, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, property or securities (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of the Guarantor subordinated to the payment of the Guarantees, such payment or
distribution being hereinafter referred to as "Guarantor Junior Subordinated
Payment"), pursuant to the Guarantee of the Guarantor on account of principal of
(or premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities by the Guarantor or any Subsidiary of the
Guarantor and to that end the holders of Senior Debt of the Guarantor shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any Guarantor Junior Subordinated Payment, which may be payable or
deliverable pursuant to the Guarantee of the Guarantor in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received on
account of the Securities or the Guarantee of the Guarantor any payment or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, including any Guarantor Junior Subordinated
Payment, before all Senior Debt of the Guarantor is paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Guarantor, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee,
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custodian, assignee, agent or other Person making payment or distribution of
assets of the Guarantor for application to the payment of all Senior Debt of the
Guarantor remaining unpaid, to the extent necessary to pay all Senior Debt of
the Guarantor in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt of the Guarantor. Any taxes
that have been withheld or deducted from any payment or distribution in respect
of the Securities or the Guarantees, or any taxes that ought to have been
withheld or deducted from any such payment or distribution that have been
remitted to the relevant taxing authority, shall not be considered to be an
amount that the Trustee or the Holder of any Security receives for purposes of
this Section.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Guarantor as reorganized or readjusted,
or securities of the Guarantor or any other corporation provided for by a plan
of reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Debt of the Guarantor to substantially
the same extent as the Guarantees are so subordinated as provided in this
Article. The consolidation of the Guarantor with, or the merger of the Guarantor
into, another Person or the liquidation or dissolution of the Guarantor
following the sale of all or substantially all of its properties and assets as
an entirety to another Person or the liquidation or dissolution of the Guarantor
following the sale of all or substantially all of its properties and assets as
an entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a Guarantor Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which the Guarantor
is merged or the Person which acquires by sale such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger, or
sale comply with the conditions set forth in Article Eight.
Section 1603. Prior Payment to Senior Debt of the Guarantor Upon
Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Debt of the
Guarantor outstanding at the time such Securities so become due and payable
shall be entitled to receive payment in full of all amounts due on or in respect
of such Senior Debt of the Guarantor, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Guarantor, before the Holders of the Securities
are entitled to receive any payment (including any payment which may be payable
by reason of the payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Guarantees) pursuant to the Guarantee of the
Guarantor on
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account of the principal of (or premium, if any) or interest on the Securities
or on account of the purchase or other acquisition of Securities by the
Guarantor or any Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
Article Thirteen by delivering and crediting pursuant to Section 1302 Securities
which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Guarantor.
The provisions of this Section shall not apply to any payment with respect
to which Section 1602 would be applicable.
Section 1604. No Payment When Senior Debt of the Guarantor in
Default.
(a) In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt of the
Guarantor, or in the event that any event of default with respect to any Senior
Debt of the Guarantor shall have occurred and be continuing and shall have
resulted in such Senior Debt of the Guarantor becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no payment
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Guarantor being subordinated to the payment of the
Guarantees) shall be made by the Guarantor pursuant to the Guarantees on account
of principal of (or premium, if any) or interest on the Securities or on account
of the purchase or other acquisition of Securities by the Guarantor or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Thirteen by
delivering and crediting pursuant to Section 1302 Securities which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
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foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Guarantor.
The provisions of this Section shall not apply to any payment with respect
to which Section 1602 would be applicable.
Section 1605. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities or the Guarantees shall prevent (a) the Guarantor, at any time
except during the pendency of any Guarantor Proceeding referred to in Section
1602 or under the conditions described in Sections 1603 and 1604, from making
payments at any time pursuant to the Guarantees of the Guarantor of principal of
(and premium, if any) or interest on the Securities, or (b) the application by
the Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest on the Securities
or the retention of such payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such payment would
have been prohibited by the provisions of this Article.
Section 1606. Subrogation to Rights of Holders of Senior Debt of the
Guarantor.
Subject to the payment in full of all Senior Debt of the Guarantor, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Guarantor, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt of the Guarantor pursuant to the
provisions of this Article (equally and ratably with the holders of all other
indebtedness of the Guarantor which by its express terms is subordinated to
indebtedness of the Guarantor to substantially the same extent as the Guarantees
are subordinated to the Senior Debt of the Guarantor and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Debt of the Guarantor) to the rights of the holders of such
Senior Debt of the Guarantor to receive payments and distributions of cash,
property and securities of the Guarantor applicable to the Senior Debt of the
Guarantor until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. If the Trustee or the Holders of the
Securities are not for any reason entitled to be subrogated to the rights of
holders of Senior Debt of the Guarantor in respect of such payment or
distribution, then the Trustee or the Holders of the Securities may require each
holder of Senior Debt of the Guarantor to whom any such
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payment or distribution is made as a condition to such payment or distribution
to assign its Senior Debt of the Guarantor to the extent of such payment or
distribution and all rights with respect thereto to the Trustee on behalf of the
Holders. Such assignment shall not be effective until such time as all Senior
Debt of the Guarantor has been paid in full or payment thereof provided for. For
purposes of such subrogation or assignment, no payments or distributions to the
holders of the Senior Debt of the Guarantor of any cash, property or securities
to which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt of the Guarantor by
Holders of the Securities or the Trustee, shall, as among the Guarantor, its
creditors other than holders of Senior Debt of the Guarantor, and the Holders of
the Securities, be deemed to be a payment or distribution by the Guarantor to or
on account of the Senior Debt of the Guarantor.
Section 1607. Provisions Solely to Define Relative Rights.
The provisions of this Article are and 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 Debt of the Guarantor on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities or
in the Guarantees is intended to or shall (a) impair, as among the Guarantor,
its creditors other than holders of Senior Debt of the Guarantor, and the
Holders of the Securities, the obligations of the Guarantor, which are absolute
and unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt of the Guarantor, are intended to rank equally with all
other general unsecured obligations of the Guarantor), to pay to the Holders of
the Securities pursuant to and in accordance with the Guarantees the principal
of (and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Guarantor of the Holders of the Securities and
creditors of the Guarantor other than the holders of Senior Debt of the
Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Guarantor Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt of the Guarantor to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Without limiting the generality of the foregoing, nothing contained in
this Article will restrict the right of the Trustee or the Holders of the
Securities of any series to take any action to declare the Securities of such
series to be due and payable prior to their stated maturity pursuant to Section
502 or to pursue any rights or remedies hereunder.
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Section 1608. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1609. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of the
Guarantor to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Guarantor with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt of the Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities,
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of the Guarantor, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter or increase, Senior Debt of the Guarantor, or otherwise amend or
supplement in any manner Senior Debt of the Guarantor or any instrument
evidencing the same or any agreement under which Senior Debt of the Guarantor is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt of the Guarantor; (iii)
release any Person liable in any manner for the collection of Senior Debt of the
Guarantor; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 1610. Notice to Trustee.
The Guarantor shall give prompt written notice to the Trustee of any fact
known to the Guarantor which would prohibit the making of any payment to or by
the Trustee in respect of the Guarantees. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Guarantees, unless
and until the Trustee shall have received written notice thereof from the
Guarantor or a holder
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of Senior Debt of the Guarantor or from any trustee, agent or representative
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
or herself to be a holder of Senior Debt of the Guarantor (or a trustee, agent
or representative therefor) to establish that such notice has been given by a
holder of Senior Debt of the Guarantor (or a trustee, agent or representative
therefor). 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 Debt of the Guarantor 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 Debt of the Guarantor 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 1611. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Guarantor referred to in
this Article, the Trustee, subject to the provisions of Section 601, 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 Guarantor
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, 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 the Senior Debt
of the Guarantor and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount
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or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 1612. Trustee Not Fiduciary For Holders of Senior Debt of the
Guarantor.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt of the Guarantor
and shall not be liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Guarantor or to any
other Person cash, property or securities to which any holders of Senior Debt of
the Guarantor shall be entitled by virtue of this Article or otherwise.
Section 1613. Rights of Trustee as Holder of Senior Debt of the
Guarantor; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of the Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Debt of the Guarantor, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1614. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Guarantor and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
Section 1615. Defeasance of This Article Sixteen.
The subordination of the Guarantees provided by this Article Sixteen is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Twelve and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance with respect to the
Securities of a series, the Guarantees of the Guarantor with respect to the
Securities of such series shall thereupon cease to be subordinated pursuant to
this Article Sixteen.
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* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
AETNA LIFE AND CASUALTY COMPANY
By ______________________________
Name:
Title:
[Seal]
Attest:
--------------------
AETNA INC.
By ______________________________
Name:
Title:
[Seal]
Attest:
--------------------
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION
By ______________________________
Name:
Title:
[Seal]
Attest:
--------------------
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STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that (s)he is
of AETNA LIFE AND CASUALTY COMPANY, one of the corporations described in and
which executed the foregoing instrument; that (s)he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that (s)he signed her/his name thereto by like authority.
-------------------------
Notary Public
000
000
XXXXX XX XXXXXXXXXXX )
) ss.:
COUNTY OF HARTFORD )
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that (s)he is
of AETNA INC., one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that (s)he
signed her/his name thereto by like authority.
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Notary Public
109
119
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that (s)he is
of STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, one
of the corporations described in and which executed the foregoing instrument;
that (s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
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Notary Public
110
