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Exhibit 4(a)
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FLEET BOSTON CORPORATION
AND
THE BANK OF NEW YORK
TRUSTEE
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INDENTURE
DATED AS OF DECEMBER 6, 1999
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SENIOR DEBT SECURITIES
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FLEET BOSTON CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF DECEMBER 6, 1999
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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sec. 310(a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ 609
(b) ........................................ 608
610
(c) ........................................ Not Applicable
sec. 311(a) ........................................ 613(a)
(b) ........................................ 613(b)
(b)(2) ........................................ 703(a)(2)
703(b)
sec. 312(a) ........................................ 701
702(a)
(b) ........................................ 702(b)
(c) ........................................ 702(c)
sec. 313(a) ........................................ 703(a)
(b) ........................................ 703(b)
(c) ........................................ 703(a), 703(b)
(d) ........................................ 703(c)
sec. 314(a)(1) ........................................ 704
(2), (3)
(a)(4) ........................................ 1009
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
(f) ........................................ Not Applicable
sec. 315(a) ........................................ 601(a)
(b) ........................................ 602
703(a)(6)
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(c) ........................................ 610(b)
(d) ........................................ 610(c)
(d)(1) ........................................ 610(a)(1)
(d)(2) ........................................ 610(c)(2)
(d)(3) ........................................ 610(c)(3)
(e) ........................................ 514
sec. 316(a) ........................................ 101
(a)(1)(A) ........................................ 502
512
(a)(1)(B) ........................................ 513
(a)(2) ........................................ Not Applicable
(b) ........................................ 508
(c) ........................................ 104
sec. 317 (a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1003
sec. 318(a) ........................................ 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
SECTION 101. DEFINITIONS......................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................8
SECTION 104. ACTS OF HOLDERS..................................................8
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY............................9
SECTION 106. NOTICE TO HOLDERS; WAIVER.......................................10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...............................10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................10
SECTION 109. SUCCESSORS AND ASSIGNS..........................................10
SECTION 110. SEPARABILITY CLAUSE.............................................10
SECTION 111. BENEFITS OF INDENTURE...........................................11
SECTION 112. GOVERNING LAW...................................................11
SECTION 113. LEGAL HOLIDAYS..................................................11
SECTION 114. JUDGMENT CURRENCY; PAYMENT TO BE IN PROPER CURRENCY.............11
SECTION 115. MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED.................12
ARTICLE TWO - SECURITY FORMS..................................................12
SECTION 201. FORMS GENERALLY.................................................12
SECTION 202. FORM OF SECURITIES..............................................12
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................13
ARTICLE THREE - THE SECURITIES................................................13
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................13
SECTION 302. DENOMINATIONS...................................................15
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................15
SECTION 304. TEMPORARY SECURITIES............................................16
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............17
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................18
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................18
SECTION 308. PERSONS DEEMED OWNERS...........................................20
SECTION 309. CANCELLATION....................................................20
SECTION 310. COMPUTATION OF INTEREST.........................................20
SECTION 311. PAYMENT IN CURRENCIES...........................................20
SECTION 312. CUSIP NUMBERS...................................................22
ARTICLE FOUR - SATISFACTION AND DISCHARGE.....................................22
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.........................22
SECTION 402. APPLICATION OF TRUST MONEY......................................23
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES
OF ANY SERIES.................................................................23
SECTION 404. REPAYMENT TO COMPANY............................................26
SECTION 405. REINSTATEMENT...................................................26
ARTICLE FIVE - REMEDIES.......................................................26
SECTION 501. EVENTS OF DEFAULT...............................................26
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............27
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE....................................................................28
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................29
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.....29
SECTION 506. APPLICATION OF MONEY OR OTHER PROPERTY COLLECTED................30
SECTION 507. LIMITATION ON SUITS.............................................30
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, MATURITY CONSIDERATION AND INTEREST..................................31
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..............................31
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..................................31
SECTION 511. DELAY OR OMISSION NOT WAIVER....................................31
SECTION 512. CONTROL BY HOLDERS..............................................31
SECTION 513. WAIVER OF PAST DEFAULTS.........................................32
SECTION 514. UNDERTAKING FOR COSTS...........................................32
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS................................32
ARTICLE SIX - THE TRUSTEE.....................................................33
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.............................33
SECTION 602. NOTICE OF DEFAULTS..............................................34
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.......................................34
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........35
SECTION 605. MAY HOLD SECURITIES.............................................35
SECTION 606. MONEY OR OTHER PROPERTY HELD IN TRUST...........................36
SECTION 607. COMPENSATION AND REIMBURSEMENT..................................36
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.........................36
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................37
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............37
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................39
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....40
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............40
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.............................40
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............42
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......42
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........42
SECTION 703. REPORTS BY TRUSTEE..............................................43
SECTION 704. REPORTS BY COMPANY..............................................43
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..........44
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS............44
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED...............................45
ARTICLE NINE - SUPPLEMENTAL INDENTURES........................................45
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............45
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................46
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................47
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................47
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.............................48
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............48
ARTICLE TEN - COVENANTS.......................................................48
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, THE MATURITY
CONSIDERATION AND INTEREST....................................................48
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................48
SECTION 1003. MONEY OR OTHER PROPERTY FOR SECURITIES PAYMENTS AND
DELIVERIES TO BE HELD IN TRUST................................................49
SECTION 1004. CORPORATE EXISTENCE............................................50
SECTION 1005. MAINTENANCE OF PROPERTIES......................................50
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS..............................50
SECTION 1007. LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OF CERTAIN
SUBSIDIARIES..................................................................50
SECTION 1008. LIMITATION UPON LIENS ON CERTAIN CAPITAL STOCK.................52
SECTION 1009. STATEMENT AS TO COMPLIANCE.....................................52
SECTION 1010. WAIVER OF CERTAIN COVENANTS....................................52
SECTION 1011. CALCULATION OF ORIGINAL ISSUE DISCOUNT.........................53
SECTION 1012. STATEMENT BY OFFICERS AS TO DEFAULT............................53
ARTICLE ELEVEN - REDEMPTION OF SECURITIES.....................................53
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SECTION 1101. APPLICABILITY OF ARTICLE.......................................53
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................53
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............53
SECTION 1104. NOTICE OF REDEMPTION...........................................54
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................54
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE..........................54
SECTION 1107. SECURITIES REDEEMED IN PART....................................55
ARTICLE TWELVE - SINKING FUNDS................................................55
SECTION 1201. APPLICABILITY OF ARTICLE.......................................55
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........55
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND......................56
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INDENTURE, dated as of December 6, 1999, between FLEET BOSTON
CORPORATION, a corporation duly organized and existing under the laws of the
State of Rhode Island (herein called the "Company"), having its principal office
at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and THE BANK OF NEW YORK, a
New York banking corporation (herein called the "Trustee"), with its principal
corporate trust office located in New York, New York.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series and denominated in U.S.
dollars or foreign currencies, including units of two or more foreign
currencies, as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, 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 covenanted and agreed by the
Company and by the Trustee, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings, assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, 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; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Authenticating Agent" with respect to any series of Securities means
any person authorized by the Trustee pursuant to Section 614.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand, and (b) engages in the business of making commercial loans and (ii) any
trust company organized under any of the foregoing laws.
"Board of Directors" means either the board of directors of the
Company, any duly authorized committee of that board or the Chairman, any Vice
Chairman, the President or any Vice President of the Company duly authorized by
the board of directors of the Company to take a specified action or make a
specified determination.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or (i) with
respect to Securities denominated in a Foreign Currency, in the city specified
in the Board Resolution pursuant to Section 301 or (ii) with respect to
Securities which will bear interest based on a specified percentage of London
interbank offered quotations, a day which is also a day on which banks in
London, England are open for business (including dealings in foreign exchange
and foreign currency deposits).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, 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 on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Vice Chairman, Chief Financial Officer or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Components", with respect to a composite currency, means the currency
amounts that are components of such composite currency on the Conversion Date
with respect to such composite currency. After such Conversion Date if the
official unit of any component currency is altered by way of combination or
subdivision, the number of units of such currency in the Component shall be
proportionately divided or multiplied. After such Conversion Date if two or more
component currencies are consolidated into a single currency, the amounts of
those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amounts of such consolidated component
currencies expressed in such single currency, and such amount shall thereafter
be a Component. If after such Conversion Date any component currency shall be
divided into two or more currencies, the amount of such currency as a Component
shall be replaced by amounts of such two or more currencies, each of which shall
be equal to the amount of such former component currency
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divided by the number of currencies into which such component currency was
divided, and such amounts shall thereafter be Components.
"Constituent Bank" means a Subsidiary which is a Bank.
"Conversion Date", with respect to a composite currency, has the
meaning specified in Section 311(d).
"Corporate Trust Office" means the corporate trust office of the
Trustee located in the Borough of Manhattan, The City of New York, at which at
any particular time its corporate trust business shall be administered, which
office, at the date of the execution hereof, is located at 000 Xxxxxxx Xxxxxx,
Xxxxx 8 West, New York, New York 10286, Attention: Corporate Trust Trustee
Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Euro" means the single currency of participating member states which
was introduced on January 1, 1999 at the commencement of the third stage of
European economic and monetary union pursuant to the Treaty establishing the
European Community as amended by the Treaty on European Union (and references
during the transitional period following the introduction of the Euro on January
1, 1999 up to the end of the transitional period on December 31, 2001 to
"Deutsche marks" or "DM" and to "French francs" or "FFR" refer, in each case to
the national currency units of, respectively, Germany and France (being
non-decimal denominations of the Euro)).
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" means (a) if pursuant to Section 311(a) payment is to
be made in U.S. dollars with respect to a Security denominated in a Foreign
Currency, the highest firm bid quotation for U.S. dollars received by the
Exchange Rate Agent at approximately 11:00 A.M. New York City time on the second
Business Day preceding the applicable payment date (or, if no such rates are
quoted on such date, the last date on which such rates were quoted), from three
recognized foreign exchange dealers in The City of New York selected by the
Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Foreign Currency payable on
such payment date in respect of all Securities denominated in such Foreign
Currency and (b) if an Exchange Rate is to be computed for purposes of any
provision other than Section 311(a), the rate determined pursuant to the
foregoing clause (a) on such date and at such time as may be specified in the
relevant provision.
In the case of clause (a) above, if no such bid quotations are
available, payments pursuant to Section 311(a) will be made in the applicable
Foreign Currency, unless such Foreign Currency is unavailable due to the
imposition of exchange controls (or, in the case of a composite currency, such
currency ceases to be used for the purposes for which it was established as
provided in Section 311(d) (ii)) or other circumstances beyond the control of
the Company, in which case the Company will be entitled to make payments in U.S.
dollars on the basis of the Market Exchange Rate for such Foreign Currency.
If for any reason any of the foregoing rates are not available with
respect to one or more Foreign Currencies for which an Exchange Rate is
required, the Company shall use the most recently available quotation of the
Federal Reserve Bank of New York, or quotations from one or more commercial
banks in The City of New York or in the country of issue of the Foreign Currency
in question, or such other quotations as the Company, in each case, shall deem
appropriate; provided, however, that if there is more than one market for
dealing in any Foreign Currency by reason of foreign
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exchange regulations or otherwise, the market to be used for such quotations
shall be the largest market upon which a nonresident issuer of securities
designated in such Foreign Currency would purchase such Foreign Currency in
order to make payments in respect of such securities.
"Exchange Rate Agent" means the New York clearing house bank designated
by the Company to act as such for any series of Securities (with notice to the
Trustee for that series), or any successor thereto, and may be the Trustee for
the series.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate signed by an officer of the Exchange Rate Agent
and delivered to the Company and to the Trustee, setting forth (i) the
applicable Market Exchange Rate or Exchange Rate and (ii) the U.S. dollar or
Foreign Currency amount of principal (and premium, if any) and interest payable
with respect to a Security of any series on the basis of the Market Exchange
Rate or Exchange Rate, as the case may be (on an aggregate basis and on the
basis of a Security having the lowest denomination principal amount pursuant to
Section 302 in the relevant currency).
"Fleet National Bank" means Fleet National Bank, a national banking
association.
"Foreign Currency" means a currency issued by the government of any
country (other than a currency of the United States of America) or a currency
based on the aggregate value of currencies of any group of countries.
"Foreign Government Obligations" has the meaning specified in Section
403.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means with respect to each series of Securities for which a
Person is acting as Trustee, 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
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301 exclusive, however,
of any provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one
or more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 114.
"Market Exchange Rate" means (a) if pursuant to Section 311(d) (i),
payment is to be made in U.S. dollars with respect to a Security denominated in
a Foreign Currency (other than a composite currency), the noon buying rate in
The City of New York for cable transfers of such Foreign Currency as certified
by the Federal Reserve Bank of New York on the second Business Day preceding the
applicable payment date and (b) if pursuant to Section 311(d) (ii) payment is to
be made in U.S. dollars with respect to a Security denominated in a composite
currency, for each Component of such composite currency, the Market Exchange
Rate determined pursuant to the foregoing clause (a) on the second Business Day
preceding the applicable payment date.
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In the event a Market Exchange Rate as described in clause (a) or (b)
above is not available, the Company will be entitled to make payments in U.S.
dollars pursuant to Section 311(d) (i) or (ii) on the basis of the most recently
available Market Exchange Rate for such Foreign Currency or each Component of
such composite currency, as the case may be.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security, an installment of principal or the
Maturity Consideration becomes due and payable or deliverable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Consideration" means securities, which may be issued by the
Company or another Person, or a combination of cash, such securities and/or
other property that may be delivered to Holders of Securities of any series to
satisfy the Company's obligations with regard to payment upon Maturity, or any
redemption or required repurchase or in connection with any exchange provisions,
or any interest payment.
"New York Banking Day" has the meaning specified in Section 114.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman, the Chief Financial Officer or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee to whom such
opinion is to be provided.
"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 of any series 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 for
such series or any Paying Agent for such series (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; 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; and
(iii) Securities of any series 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, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
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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 are registered in the Security Register
in the name of the Company, any obligor stated to be so obligated on such
Securities or any Affiliate of the Company or such obligor which is listed as
such on an Officers' Certificate delivered to the Trustee for that series 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 for such series the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means for any series any Person authorized by the
Company to pay or deliver the principal of (and premium, if any), Maturity
Consideration or interest on, any Securities of that series on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any),
Maturity Consideration and interest on the Securities of that series are payable
or deliverable 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 Constituent Bank" means Fleet National Bank or such other
Constituent Bank(s) as may be designated from time to time, pursuant to a Board
Resolution and set forth in an Officer's Certificate, pursuant to the terms of
Section 301 hereof. If a Constituent Bank is designated as a Principal
Constituent Bank in connection with the Securities of any series, such Principal
Constituent Bank shall remain a Principal Constituent Bank until such time as
the Securities of such series are repaid.
"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 or Maturity Consideration specified in such Security
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.
"Required Currency" means the currency in which principal of (and
premium, if any), Maturity Consideration and interest on a Security is payable
pursuant to Section 311.
"Responsible Officer", means, when used with respect to The Bank of New
York, an officer within the corporate trust department and, when used with
respect to any other Trustee, any trust officer or any other officer performing
functions similar to those performed by the persons who at the time shall be
such officers, and any other officer of such Trustee to whom corporate trust
matters are
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referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"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", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Specified Currency" means the currency in which the Securities of any
series are denominated.
"Stated Maturity", when used with respect to any Security or any
installment of principal, Maturity Consideration thereof or interest thereon,
means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal or Maturity
Consideration of such Security or such installment of principal, Maturity
Consideration or interest is due and payable or deliverable.
"Subsidiary" means a corporation more than 50% of the Voting Stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as "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 the securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed, except as provided in Section 905.
"U.S. Government Obligations" has the meaning specified in Section 403.
"Vice President", when used with respect to the Company or a 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".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to any Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
such Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants, compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the
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furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 1009) 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,
he has made such examination or investigation as is necessary to enable
him 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.
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 may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are 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.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of any series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. 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
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601) conclusive in favor of such Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which such Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof or
the Holder of any Predecessor Security in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) For purposes of determining the principal amount of Outstanding
Securities of any series, or if such outstanding Securities are not payable at
Maturity for a fixed principal amount, the issue price, the Securityholders of
which are required, requested or permitted to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act under
the Indenture, each Security denominated in a Foreign Currency shall be deemed
to have a principal amount or issue price determined by converting the principal
amount or issue price of such Security in the currency or currencies in which
such Security is denominated into U.S. dollars at the Exchange Rate(s) as of
9:00 A.M. New York City time as determined by an Exchange Rate Agent (as
evidenced by a certificate of such Exchange Rate Agent) on the date such Act is
delivered to the Trustee pursuant to Section 104(a). Any such determination by
the Company or an Exchange Rate Agent shall be conclusive and binding on the
Holders and the Trustee, and neither the Company nor such Exchange Rate Agent
shall be liable therefor in the absence of bad faith.
(f) The Company may, but shall not be obligated to, set a record date
for purposes of determining the identity of Holders entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 10 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 of this Indenture prior to such solicitation. If
a record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for more than
120 days after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder of any Securities or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office; or
(2) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its
Secretary at the address of its principal office specified in the first
paragraph of this instrument, or at any other address previously
furnished in writing to such Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any series of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. 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. In the
event that notice to Holders is given as provided in this Section 106, such
notice shall be deemed sufficient as to all Holders and shall be conclusively
presumed to have been given whether or not actually received. 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 such Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Section 310 to 317, inclusive, of
the Trust Indenture Act through operation of Section 318(c) thereof, such
imposed duties shall control.
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 shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
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Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles thereof.
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) payment or delivery of interest or principal (and premium, if any)
or Maturity Consideration need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day, or such other
Business Day as may be specified in an Officers' Certificate delivered to the
appropriate Trustee pursuant to Section 301 hereof, 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 for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. Judgment Currency; Payment to Be in Proper Currency.
Each reference in any Security, or in the Board Resolution relating
thereto, to any currency shall be of the essence. Subject to Section 311(d), the
Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum or amount of Maturity Consideration due or
payable in respect of the principal of (and premium, if any), Maturity
Consideration or interest on the Securities of any series in a Specified
Currency into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the Exchange Rate (as determined
by the Exchange Rate Agent) as of 11:00 a.m. New York City time on the New York
Banking Day immediately preceding that on which final unappealable judgment is
given and (b) its obligations to make any payment or delivery of principal of
(and premium, if any), Maturity Consideration and interest on any Security (i)
shall not be discharged or satisfied by any tender by the Company, or recovery
by the Trustee, either pursuant to any judgment (whether or not entered in
accordance with subsection (a) above or otherwise, in any currency other than
the Required Currency, except to the extent that any such tender or recovery
shall result in such Trustee timely holding the full amount of the Required
Currency then due and payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such timely
holding shall fall short of the full amount of the Required Currency so
expressed to be then due and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close. Except as permitted under Section 311(d), if any such tender or recovery
is in a currency other than the Required Currency, the Trustee for the series
may take such actions as it considers appropriate to exchange such currency for
the Required Currency; provided, however, that the Trustee shall have no
obligation to make any payment in any currency other than the currency tendered
to or recovered by such Trustee. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, and it shall remain fully liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable, and in no circumstances shall the Trustee be liable
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therefor. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee for the series, is less than
the full amount of the Required Currency then due and payable.
SECTION 115. Moneys of Different Currencies to be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by such
Trustee hereunder in one currency from any moneys, funds and accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit such Trustee to commingle such moneys, funds and accounts.
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 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, consistently 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, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary 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 Trustees' certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities 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 Securities
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(i) the Board Resolution by or pursuant to which such form of
Security has been approved, certified by the Secretary or an Assistant
Secretary of the Company;
(ii) the Officers' Certificate required by Section 301 of this
Indenture;
(iii) the Company Order required by Section 303 of this
Indenture; and
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(iv) the Opinion of Counsel required by Section 303 of this
Indenture.
SECTION 203. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series provided for under the
within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ________________________________
Authorized Signatory
Dated: __________________
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 Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities, including CUSIP numbers, of
the series (which shall distinguish the Securities of the series from
all other Securities);
(2) the Trustee for the Securities of the series (which
Trustee shall be the Trustee named herein or a successor Trustee
appointed in accordance with the terms of this Indenture);
(3) 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 Section 304, 305, 306, 906 or
1107);
(4) the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or
deliverable;
(5) the rate or rates, or the method to be used in
ascertaining the rate or rates, at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable or deliverable and the Regular Record Date for the interest
payable or deliverable on any Interest Payment Date;
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(6) the place or places where the principal of (and premium,
if any), Maturity Consideration and interest on Securities of the
series shall be payable or deliverable, the place or places where the
Securities of such series may be presented for registration of transfer
or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be
made;
(7) the period or periods within which, the price, prices or
Maturity Consideration at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(8) 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 such series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the denominations in which Securities of the series shall
be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 502;
(11) (A) the currency of denomination of the Securities of the
series, which may be in U.S. dollars or any Foreign Currency, (B) if
such currency of denomination of such series is a composite currency
other than the Euro, the agency or organization, if any, responsible
for overseeing such composite currency and (C) if such Securities are
denominated in a Foreign Currency, the financial center relative to the
Foreign Currency;
(12) If the Securities of the series are to be denominated in
a Foreign Currency, whether the Holders thereof may elect to have
payments of the principal of (and premium, if any) and interest on such
Securities made in such Foreign Currency;
(13) if the Securities of the series are to be denominated in
a Foreign Currency, the designation of an Exchange Rate Agent;
(14) if the amount of payments of principal of (and premium,
if any), Maturity Consideration or interest, if any, on the Securities
of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities are stated to
be payable, the manner in which such amounts shall be determined;
(15) the extent to which any of the Securities will be
issuable in temporary or permanent global form, and the manner in which
any interest payable or deliverable on a temporary or permanent global
Security shall be paid or delivered;
(16) any addition to or modification or deletion of any Event
of Default or covenants of the Company with respect to the Securities
of such series whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) any covenant solely for the benefit of the Securities of
the series;
(18) the applicability of Section 403 of this indenture to the
Securities of the series;
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(19) the appointment of any Paying Agent or Agents for the
Securities of such series;
(20) whether, and the terms and conditions relating to when
the Company may satisfy all or part of its obligations with regard to
payment or delivery upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any
interest payment, by paying or delivering Maturity Consideration to the
Holders of the Securities; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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 of the Board, its President, one of its Vice Chairmen or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and such other documents as such
Trustee may reasonably request, and such Trustee in accordance with the Company
Order and subject to the provisions hereof shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series 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,
such Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
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(a) if the form of such securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities 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; and
(c) that all conditions precedent to the authentication and
delivery of such Securities have been complied with and that such
Securities, when authenticated and delivered by the Trustee for such
series 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,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors, rights and to general equity
principles.
If such form or terms have been so established, such Trustee shall not
be required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect such Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to such Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Each Security shall be dated the date of its authentication.
No Security of any series 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 of one of its authorized
officers, 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 is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee for such series shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
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 a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary
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Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 305 or Section 1002 a register
(being the combined register of the Security Registrar and all Co-Security
Registrars and herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed Security Registrar with
respect to the series of Securities for which it is acting as Trustee, in each
case 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 series, of any authorized denominations and of a like aggregate
principal amount.
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, 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 valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Co-Security Registrar for the series) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Co-Security Registrar for the series 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 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.
Neither the Company, the Security Registrar nor any Co-Security
Registrar 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.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security of any series is surrendered to the Trustee,
together with such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall execute and such
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request such Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount 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 or deliver the Maturity
Consideration deliverable thereon.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of such Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, 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.
Unless otherwise provided, as contemplated by Section 301, interest on
any Security which is payable or deliverable, and is punctually paid, delivered
or duly provided for, on any Interest Payment Date shall be paid or delivered to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business of the Regular Record Date for such
interest, PROVIDED, HOWEVER, that in the case of a Security originally issued
between a Regular Record Date and the Interest Payment Date or on an Interest
Payment Date relating to such Regular Record Date, interest for the period
beginning on the date of issue and ending on such Interest Payment Date shall be
paid or delivered on the next succeeding Interest Payment Date to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date with respect to such
succeeding Interest Payment Date.
Any interest on any Security of any series which is payable or
deliverable, but is not punctually paid, delivered or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable or deliverable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid or
delivered 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 or delivery 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 or
delivery 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 or delivered on
each Security of such series and
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the date of the proposed payment or delivery, and at the same time the
Company shall deposit with such Trustee an amount of money or other
property equal to the aggregate amount proposed to be paid or delivered
in respect of such Defaulted Interest or shall make arrangements
satisfactory to such Trustee for such deposit prior to the date of the
proposed payment or delivery, such money or other property when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon such
Trustee shall fix a Special Record Date for the payment or delivery of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment or delivery
and not less than 10 days after the receipt by such Trustee of the
notice of the proposed payment or delivery. Such 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
or delivery 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 his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment or delivery of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid or delivered 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 or deliverable pursuant to
the following Clause (2).
(2) The Company may make payment or delivery 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 or delivery pursuant to this Clause, such
manner of payment shall be deemed practicable by such 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 of any series for registration
of transfer, the Company, the Trustee and any agent of the Company or such
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment or delivery of
principal of (and premium, if any), Maturity Consideration in respect of, and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
such Trustee nor any agent of the Company or such Trustee shall be affected by
notice to the contrary.
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 canceled and delivered to
such Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities of such series previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
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any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by such Trustee shall
be disposed of by the Trustee in accordance with its customary procedures and
such Trustee shall provide to the Company, if requested by the Company, a
certificate of such disposition.
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 year of twelve 30-day months.
SECTION 311. Payment in Currencies.
(a) Unless otherwise provided in Section 301 hereof, subject to
subsection (b) hereof, if the Maturity Consideration is to be satisfied by a
cash payment, payment of the principal of (and premium, if any), Maturity
Consideration and interest on the Securities of any series, whether or not
denominated in a Foreign Currency pursuant to Section 301 shall be made in U.S.
dollars. If a series of Securities is denominated in a Foreign Currency, the
amount receivable in U.S. dollars by the Holders of such series shall be
determined as provided in Section 311(c).
(b) If authorized pursuant to Section 301, any Holder of a Security of
a series of Securities denominated in a Foreign Currency may elect to receive
payments in the Foreign Currency in which such Security is denominated pursuant
to Section 301. A Holder may make such election by delivering to the Trustee a
written notice thereof, in such form as may be acceptable to such Trustee, not
later than the close of business on the Regular Record Date or Special Record
Date, as the case may be, immediately preceding the applicable Interest Payment
Date or the fifteenth day immediately preceding the Maturity of an installment
of principal, as the case may be. Such election shall remain in effect with
respect to such Holder until such Holder delivers to such Trustee a written
notice rescinding such election; PROVIDED, HOWEVER, that any such notice must be
delivered to such Trustee not later than the close of business on the Regular
Record Date or Special Record Date, as the case may be, immediately preceding
the next Interest Payment Date or the fifteenth day immediately preceding the
Maturity of an installment of principal, as the case may be, in order to be
effective for the payment to be made thereon; and PROVIDED, FURTHER, that no
such rescission may be made with respect to payments to be made on any Security
with respect to which notice of redemption has been given by the Company
pursuant to Article Eleven. The Trustee will advise the Company, in writing, of
the aggregate amount payable in a Foreign Currency pursuant to an election under
this subsection (b).
(c) For each series of securities denominated in a Foreign Currency,
the Exchange Rate Agent shall deliver to the Company and to the Trustee, by
personal delivery, telecopy, or other means reasonably acceptable to such
Trustee and the Company not later than the close of business on the second
Business Day prior to the date each payment is required to be made with respect
to the Securities of such series, a copy of the Exchange Rate Officer's
Certificate relating to each such Foreign Currency. Payments in U.S. dollars
pursuant to Section 311(a) shall be equal to the sum obtained by converting the
specified Foreign Currency, which is to be paid in U.S. dollars pursuant to
Section 311(a), at the applicable Exchange Rate or Market Exchange Rate set
forth in such Exchange Rate Officer's Certificate.
(d) If the Foreign Currency, other than a composite currency, in which
a series of Securities is denominated is not available to the Company for making
payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then with respect to each date
for the payment of principal of (and premium, if any) and interest on such
series of Securities occurring after the last date on which the Foreign Currency
was so used, all payments with respect to
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the Securities of any such series shall be made in U.S. dollars. If payment is
to be made in U.S. dollars to the Holders of any such series of Securities
pursuant to the provisions of the preceding sentence, then the amount to be paid
in U.S. dollars on a payment date by the Company to the Trustee for the series
and by such Trustee or any Paying Agent to the Holders of Securities of such
series shall be determined by an Exchange Rate Agent and shall be equal to the
sum obtained by converting the specified Foreign Currency into U.S. dollars at
the applicable Market Exchange Rate set forth in an Exchange Rate Officer's
Certificate.
(e) All decisions and determinations of the Company or an Exchange Rate
Agent regarding the Exchange Rate, Market Exchange Rate or conversion of Foreign
Currency into U.S. dollars pursuant to Section 104(e) or this Section shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company (in the case of a determination by an Exchange Rate
Agent), the Trustee, any Paying Agent and all Holders of the Securities of such
series. If a Foreign Currency (other than a composite currency) in which payment
of a series of Securities may be made, pursuant to subsection (a) above, is not
available to the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company, the
Company, after learning thereof, will give notice thereof to the Trustee
immediately (and such Trustee promptly thereafter will give notice to the
Holders of such series of Securities denominated in a Foreign Currency in the
manner provided in Section 106) specifying the last date on which such Foreign
Currency was used for the payment of principal of (and premium, if any), or
interest on such series of Securities. In the event any composite currency in
which a Security is denominated or payable ceases to be used for the purposes
for which it was established or is not available due to circumstances beyond the
control of the Company, the Company, after learning thereof, will give notice
thereof to the Trustee immediately (and such Trustee thereafter will give notice
to the Holders of such series of Securities denominated in a Foreign Currency in
the manner provided in Section 106). In the event of any subsequent change in
any Component of any composite currency in which a series of Securities is
denominated or payable, the Company, after learning thereof, will give notice to
the Trustee for the series similarly (and such Trustee promptly thereafter will
give notice to the Holders in the manner provided in Section 106). The Trustee
shall be fully justified and protected in relying and acting upon the
information so received by it from the Company and from any Exchange Rate Agent
and shall not otherwise have any duty or obligation to determine such
information independently. The Company agrees to appoint and maintain an
Exchange Rate Agent for the performance of the obligations of the Exchange Rate
Agent Specified herein.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
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 herein expressly provided for), and
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each Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities 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 for whose payment money or, if
applicable, such other property constituting Maturity
Consideration if determinable has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been canceled and
delivered to the appropriate Trustee; or
(B) all such Securities not theretofore canceled and delivered
to the appropriate Trustee
(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
appropriate Trustee for the giving of notice of
redemption by such Trustee in the name, and at the
expense, of the Company, and the Company, in the case
of (i), (ii) or (iii) above, has deposited or caused
to be deposited with such Trustee as trust funds in
trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities
of the relevant series not theretofore delivered to
such Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such
deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or
Redemption Date, as the case may be or, if
applicable, such other property constituting Maturity
Consideration if determinable;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there are Securities of two or more series 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 all series as to which it is Trustee and if the other conditions
thereto are met. The effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from the Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company 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.
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SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money, property, U.S. Government Obligations and Foreign Government Obligations
deposited with the Trustee pursuant to Sections 401 and 403 in respect of
Securities of a series shall be held in trust and applied by it, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any), Maturity Consideration and interest for
whose payment such money has been deposited with the Trustee; unless otherwise
specified herein, such money need not be segregated from other funds except to
the extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series. If this Section 403 is specified, as contemplated by Section 301, to
be applicable to the Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of any
such series at the time Outstanding, and, upon Company Request, the Trustee for
the series, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction, discharge and defeasance of such indebtedness, when
(1) either
(A) with respect to all Securities of such series at
the time Outstanding, the Company shall have deposited or
caused to be deposited irrevocably with the Trustee as trust
funds in trust, (i) in the case of Securities denominated in a
Foreign Currency, money in such Foreign Currency or such
Foreign Government Obligations (as defined below) of the
government or governments issuing such Foreign Currency or a
combination thereof, or (ii) in the case of Securities
denominated in U.S. dollars, U.S. dollars or U.S. Government
Obligations (as defined below) or a combination thereof, in
each case, in an amount which, or which through the payment of
interest, principal and premium, if any, in respect thereof in
accordance with their terms will provide (without any
reinvestment of such interest, principal or premium), not
later than one Business Day before the due date of any payment
in respect of the Securities for such series, money in an
amount sufficient (in the case of a deposit including any U.S.
Government Obligations or Foreign Government Obligations in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to such Trustee at or prior to the time of
such deposit) to pay and discharge each installment of
principal of (including any mandatory sinking fund payments),
premium, if any, and interest on, the Outstanding Securities
of such series on the dates such installments of principal
(and premium, if any), and interest are due or the Stated
Maturity or date of redemption of such series, if applicable;
or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company shall have delivered to the Trustee an
Officers' Certificate certifying as to whether the Securities of such
series are then listed on the New York Stock Exchange;
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(3) if the Securities of such series are then listed on the
New York Stock Exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise
of its option under this Section would not cause such Securities to be
delisted;
(4) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit as evidenced to
such Trustee in an Officers' Certificate delivered to such Trustee
concurrently with such deposit;
(5) the Company shall have paid or caused to be paid all other
sums payable with respect to the Securities of such series at the time
outstanding;
(6) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
403 and will be subject to Federal income tax on the same amount and in
the manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of the Securities of
such series being discharged, accompanied by a ruling to that effect
received from, or published by, the Internal Revenue Service;
(8) the Company shall have delivered to the Trustee for the
series an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction, discharge and defeasance of the entire indebtedness on
all Securities of any such series at the time Outstanding have been
complied with; and
(9) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that immediately following the deposit described
in clause (1) above neither the Company nor the Trust held by the
Trustee shall be an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States 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, under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof.
"Foreign Government Obligations" means securities denominated in a
Foreign Currency that are (i) direct obligations of a foreign government for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, which, in either
case, under clauses (i) or (ii) are not callable or redeemable at the option of
the issuer thereof.
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Any deposits with the Trustee for the series referred to in Sections
401 and 403(l)(A) above shall be irrevocable and shall be made under the terms
of an escrow trust agreement in form and substance reasonably satisfactory to
the Trustee. If any Securities of a series with respect to which a deposit has
been made pursuant to Sections 401 and 403(l) (A) at the time outstanding are to
be redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the applicable escrow trust agreement shall provide therefor and
the Company shall make such arrangements as are satisfactory to the Trustee for
the series for the giving of notice of redemption by the Trustee for the series
in the name, and at the expense, of the Company. If the Securities of such
series are not to become due and payable at their Stated Maturity or upon call
for redemption within one year of the date of deposit, then the Company shall
give, promptly after the date of such deposit, notice of such deposit to the
Holders of Securities of such series.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Securities pursuant to Section 306 of Securities of
such series expressly provided for herein or in the form of Security of such
series); PROVIDED, that the Company shall not be discharged from any payment
obligations in respect of Securities of such series which are deemed not to be
Outstanding under clause (iii) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law; and
PROVIDED FURTHER that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with respect to the Company
within 91 days after the deposit, the entire indebtedness on all Securities of
such series shall not be discharged and in such event the Trustee shall return
such deposited funds or obligations as it is then holding to the Company on
Company Request.
SECTION 404. Repayment to Company. After the payment in full of the
entire indebtedness of a series of Securities with respect to which a deposit
has been made with the Trustee pursuant to Section 403, such Trustee and any
Paying Agent for such series shall upon Company Request promptly return to the
Company any money, U.S. Government Obligations or Foreign Government Obligations
held by them that are not required for the payment of the principal of (and
premium, if any), and interest on the Securities of such series.
SECTION 405. Reinstatement. If the Trustee is unable to apply any
money, U.S. Government Obligations or Foreign Government Obligations in
accordance with Section 403 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 403 until such time as the
Trustee is permitted to apply all such money, U.S. Government Obligations or
Foreign Government Obligations in accordance with Section 403.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment or delivery of any interest upon
any Security of that series when it becomes 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 Security of that series at its Maturity; or
(3) default in the delivery or payment of Merger Consideration
when due; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, for such
series by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Principal Constituent Bank in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Principal Constituent Bank or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the commencement by the Company or any Principal
Constituent Bank of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by any of the foregoing to the
entry of a decree or order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding, or the filing by
any of the foregoing of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by any of the foregoing to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Principal Constituent Bank or of any substantial part of
the property of any, or the making by any of the foregoing of an
assignment for the benefit of creditors, or the admission by any of the
foregoing in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or
any Principal Constituent Bank in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
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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 or, if such Securities
are not payable at Maturity for a fixed principal amount, 25% of the aggregate
issue price of the Outstanding Securities of that series may declare the
principal amount or Maturity Consideration (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all of the Securities of that
series to be due and payable or deliverable immediately, by a notice in writing
to the Company (and to such Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) or Maturity
Consideration shall become immediately due and payable or deliverable.
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 or other property due or deliverable has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of that series, by written notice to the Company and such Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid, or deposited with or delivered to
the Trustee a sum or other property sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) or
Maturity Consideration of any Securities of that series which
have become due otherwise than by such declaration of
acceleration and 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 by such Trustee hereunder, the
Security Registrar, the Co-Security Registrar for such series
and any Paying Agent and the reasonable compensation,
expenses, disbursements and advances of any one of them and
their agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of, or non-delivery
of the Maturity Consideration of, 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.
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) or the delivery of the Maturity Consideration of
any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay or deliver to it, for the
benefit of the Holders of such Securities, the whole amount or other property
then due and payable or deliverable on such Securities for principal (and
premium, if any), Maturity Consideration and interest on and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any), Maturity Consideration 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 reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel.
If the Company fails to pay or deliver such amounts and/or other
consideration forthwith upon such demand, such Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums or other property so due and unpaid or not delivered, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys or other property adjudged or decreed to be payable or deliverable in the
manner provided by law out of the property of the Company 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 such 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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal or Maturity
Consideration of the Securities shall then be due and payable or deliverable as
therein expressed or by declaration or otherwise and irrespective of whether the
filing Trustee shall have made any demand on the Company for the payment of
overdue principal or interest or delivery of the Maturity Consideration) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), Maturity Consideration and interest
owing and unpaid or undelivered in respect of the Securities of each
series for which the filing Trustee is Trustee and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of such Trustee (including any claim for the reasonable
compensation, expenses and disbursements of such Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of each series to make such payments or deliveries to
the Trustee and, in the event that such Trustee shall consent to the making of
such payments or deliveries directly to the Holders, to pay to such Trustee any
amount due it for the
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reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize any 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 any Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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 any Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by any 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 such Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money or other Property Collected. Any
money or other property collected by the Trustee with respect to Securities of a
series pursuant to this Article shall be applied in the following order, at the
date or dates fixed by such Trustee and, in case of the distribution of such
money or other property on account of principal (or premium, if any), Maturity
Consideration or interest upon presentation of the Securities of such series 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 such Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any), Maturity Consideration and interest on the Securities
of such series, in respect of which or for the benefit of which such money or
other property has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any), Maturity Consideration and interest,
respectively. Subject to Section 311(d)(ii), the Security Holders of each series
of Securities denominated in a Foreign Currency shall be entitled to receive a
ratable portion of the amount determined by an Exchange Rate Agent by converting
the principal amount Outstanding of such series of Securities in the currency in
which such series of Securities is denominated into U.S. dollars at the Exchange
Rate (as determined by the Exchange Rate Agent, as of the date of declaration of
acceleration of the Maturity of the Securities (or, if there is no such rate on
such date for the reasons specified in Section 311(d)(i), the applicable Market
Exchange Rate).
THIRD: The balance if any, to the persons 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 for that series 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 or,
if such Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue
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price of the Outstanding Securities of that series shall have made
written request to the Trustee for that series to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) such 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 such Trustee during such 60-day period by the Holders of
a majority in principal amount or, if such Securities are not payable
at Maturity for a fixed principal amount, the aggregate issue price 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 Holders of any other series, 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, Maturity Consideration 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 or delivery of the principal of (and premium, if any), Maturity
Consideration and (subject to Section 307) 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 or delivery, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If any 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
such Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, such Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of such 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 any 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 any Trustee or of any Holder of any Security 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. Every right and remedy given by this Article or by law to
any Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount, or if such Securities are not
payable at Maturity for a fixed principal amount, the aggregate issue price 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 such 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,
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of
other Holders, and
(4) such direction would not involve such Trustee in personal
liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price 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 or delivery of the principal of (or
premium, if any), Maturity Consideration 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.
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.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
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any Holder for the enforcement of the payment of the principal of (or premium,
if any), Maturity Consideration or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and only with respect to series of Securities as to
which it is Trustee, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to it and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing as to a
series of Securities as to which it is Trustee, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a
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majority in principal amount or, if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price, of
the Outstanding Securities of any series as to which it is the Trustee,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder known to
the Trustee with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any), Maturity Consideration or interest on any Security of such series or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(5) 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 conclusively 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 mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution of the Company;
(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;
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(d) the Trustee may consult with counsel of its selection and
the 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
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act 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, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall 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, in its individual or any other
capacity, may become the owner or pledgee of
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Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company 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 or Other Property Held in Trust.
Money held by the Trustee in trust or by any Paying Agent hereunder
need not be segregated from other funds or other property except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money or other property received by it hereunder.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay the Trustee, the Security Registrar, any
Co-Security Registrar and any Paying Agent, as the case may be, from
time to time such compensation as shall be agreed in writing between
the Company and the Trustee for all services rendered by them 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, the Security Registrar, any Co-Security
Registrar and any Paying Agent, as the case may be, upon their request
for all reasonable expenses, disbursements and advances incurred or
made by any one of them in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
bad faith;
(3) to indemnify each of the Trustee, the Security Registrar,
any Co-Security Registrar and any Paying Agent, as the case may be,
for, and to hold each of them harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending themselves against any claim (whether
asserted by the Company, a Holder or any other Person) or liability in
connection with the exercise or performance of any of their powers or
duties hereunder (unless the Trustee, Security Registrar, a Co-Security
Registrar or Paying Agent was negligent or acted in bad faith in such
exercise or performance); and
(4) as security for the performance of the obligations of the
Company pursuant to this Section 607, the Trustee for the Securities of
any series shall have a lien prior to the Securities of all such series
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on the Securities of any such
series.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded this Indenture with
respect to Securities of any particular series of Securities other than that
series. Nothing herein shall prevent the
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Trustee from filing with the Securities and Exchange Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall at all
times be either
(i) 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
exercise corporate trust powers, and subject to supervision or
examination by Federal, State or District of Columbia
authority; or
(ii) a corporation or other Person organized and
doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees; in either case having a combined
capital and surplus of at least $50,000,000.
If such corporation 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 corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more of such series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Trustee.
(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 such Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any
court of competent
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jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security of any series 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 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 himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable 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 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 himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(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
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successor Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. 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 and to
the retiring Trustee or Trustees an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee or Trustees 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 or
Trustees; but, on the request of the Company or the successor Trustee,
such retiring Trustee or Trustees shall, upon payment of its charges
and all amounts owing under Section 607, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers, and trusts of the retiring Trustee or Trustees and shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee or Trustees 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 retiring Trustee and each successor Trustee
with respect to the Securities of one or more 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 and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (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
Trustees co-trustees of the same trust, 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
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, 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, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee
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relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in
the Trustee under this Indenture, and each such successor Trustee
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under 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 Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be 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.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
with respect to each series of Securities for which it is Trustee.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities of any series remain Outstanding
the Trustee may appoint an Authenticating Agent or Agents with respect to any
such series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by a Trustee or a Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of a Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of a 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 as most recently reported or determined by it sufficient under the laws
of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and which is otherwise authorized under such laws
to conduct such business and is subject to supervision or examination by Federal
or State authority. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
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The Trustee shall initially act as Authenticating Agent for each series
of Securities issued hereunder.
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 all or substantially all 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 any Trustee or the Authenticating Agent.
An Authenticating Agent with respect to any series may resign at any
time by giving written notice thereof to the Trustee for such series and to the
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee 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 Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities of
each series covered by such appointment 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 provided for under the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By __________________________________
As Authenticating Agent
By __________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of
such series as of such 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 of any such request, a
list of similar form and content as of the date not more than 15 days
prior to the time such list is furnished.
except that no such lists need be furnished so long as the Trustee is
in possession thereof by reason of its acting as Security Registrar for
such series.
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 Co-Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list
so furnished.
(b) If three or more Holders of Securities of any series
(herein referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant
has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the
applicants desire to communicate with other Holders of such series with
respect to their rights under this Indenture or under the Securities of
such series and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a); or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request
of such applicants, mail to each Holder whose name and address appear
in the information preserved at the time by the Trustee in accordance
with Section 702(a) a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in
the opinion of the
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Trustee, such mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after notice
and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise
the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities of each series, by receiving
and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under Section 702 (b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after August 15 of each year commencing
with the later of August 15, 2000 or the first August 15 after the
first issuance of Securities of a series for which the Trustee is
acting as Trustee pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities of such series as
provided in Section 313(c) of the Trust Indenture Act, as their names
and addresses appear in the Security Register for such series, a brief
report dated as of such August 15 if required by Section 313(a) of the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and
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registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(4) delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) The corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
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, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment or
delivery of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and 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 Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such
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consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made 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 such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Securities of
any series issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee of Securities; and, upon the order of
such successor corporation instead of the Company and subject to all the terms
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver such Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities of a series which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any 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 corporation to the
Company by merger, sale of assets or otherwise and the assumption by
any such successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; 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, registerable or not
registerable as to principal or Maturity Consideration, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
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(6) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or
(7) to establish the form or terms of Securities of any series
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 such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(10) to provide for conversion rights of the Holders of
Securities of any series to enable such Holders to convert such
Securities into other securities of the Company.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, 66 2/3% of the aggregate issue price, of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and such 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 insofar as
they apply to such series or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or any Maturity
Consideration of, any Outstanding Security, or reduce the principal
amount or Maturity Consideration thereof or the rate of interest
thereon or any premium payable or deliverable 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 or other property
in which, any Outstanding Security or any premium or the interest
thereon is payable or deliverable, or impair the right to institute
suit for the enforcement of any such payment or delivery on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date); or
(2) reduce the percentage in principal amount or issue price
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 1010, except to increase any such percentage or to provide
that certain other provisions
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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 1010 or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
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 right 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 such
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 as then in effect.
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 such Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by such
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, the Maturity
Consideration and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or deliver the principal of (and
premium, if any), Maturity Consideration and interest (if any) on the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
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 or delivery of Maturity Consideration, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of such Trustee, and the
Company hereby appoints such 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. Notwithstanding any other provisions to the contrary, the
Company at its option may make payment of principal (and premium, if any) and
interest with respect to Securities by check mailed to the address of the Person
entitled thereto, as such address appears on the Security Register of the
Company.
SECTION 1003. Money or Other Property for Securities Payments and
Deliveries to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), Maturity Consideration 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 or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due until such sums or other property shall be paid or delivered 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 (and
premium, if any), Maturity Consideration or interest on any Securities of that
series, deposit with a Paying Agent a sum or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due, such sum or other property to be held in trust for the benefit
of the Persons entitled to such principal,
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premium, Maturity Consideration or interest, 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:
(1) hold all sums or other property held by it for the payment
or delivery of the principal of (and premium, if any), Maturity
Consideration or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment or delivery of principal (and premium, if any), Maturity
Consideration or interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay or deliver to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money or other property deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment or delivery of the
principal of (and premium, if any), Maturity Consideration or interest in any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any), Maturity Consideration or interest has become
due and payable or deliverable shall be paid or delivered to the Company on
Company request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment or delivery thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment or delivery, 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 or other
property 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 or other property then remaining will be repaid or
delivered to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the
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Company and its Subsidiaries considered as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Company or
of the Subsidiary concerned, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 1007. Limitation on Sale or Issuance of Capital Stock of
Certain Subsidiaries.
Except as set forth below, the Company will not sell, assign, pledge,
transfer or otherwise dispose of, or permit the issuance of, or permit a
Subsidiary to sell, assign, pledge, transfer or dispose of, any shares of Voting
Stock of any Subsidiary, or any securities convertible into or options, warrants
or rights to subscribe for or purchase shares of Voting Stock of any Subsidiary,
which is:
(a) A Principal Constituent Bank; or
(b) A Subsidiary which owns shares of Voting Stock or any
securities convertible into or options, warrants or rights to subscribe
for or purchase shares of Voting Stock of a Principal Constituent Bank;
provided, however, that nothing in this Section shall prohibit any
dispositions made by the Company or any Subsidiary (i) acting in a
fiduciary capacity for any person other than the Company or any
Subsidiary, or (ii) to the Company or any of its wholly owned (except
for directors' qualifying shares) Subsidiaries. Notwithstanding the
foregoing, sales, assignments, pledges, transfers, issuances or other
dispositions of shares of Voting Stock or securities convertible into
or options, warrants or rights to subscribe for or purchase shares of
Voting Stock of a corporation referred to in Clause (a) or (b) above
may be made where:
(i) the sales, assignments, pledges, transfers,
issuances or other dispositions are made, in the minimum
amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or
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(ii) the sales, assignments, pledges, transfers,
issuances or other dispositions are made in compliance with an
order of a court or regulatory authority of competent
jurisdiction; or
(iii) the sales, assignments, pledges, transfers,
issuances or other dispositions are made in connection with a
merger or consolidation of a Principal Constituent Bank with
or into a wholly owned Subsidiary or a Constituent Bank, if,
after such merger or consolidation with such Constituent Bank,
the Company owns, directly or indirectly, not less than the
percentage of Voting Stock of the surviving entity of such
transaction as it owned of such Principal Constituent Bank
prior to such transaction; or
(iv) the sales, assignments, pledges, transfers,
issuances or other dispositions are for fair market value (as
determined by the Board of Directors of the Company, which
determination shall be conclusive and evidenced by a Board
Resolution) and, after giving effect to such disposition, the
Company and its wholly owned (except for directors' qualifying
shares) Subsidiaries, will own directly not less than 80% of
the Voting Stock of such Principal Constituent Bank or
Subsidiary; or
(v) a Principal Constituent Bank sells additional
shares of Voting Stock to its stockholders at any price, if,
after such sale, the Company owns, directly or indirectly, not
less than the percentage of Voting Stock of such Principal
Constituent Bank it owned prior to such sale; or
(vi) a pledge is made or a lien is created to secure
loans or other extensions of credit by a Constituent Bank
subject to section 23A of the Federal Reserve Act.
SECTION 1008. Limitation Upon Liens on Certain Capital Stock.
Except as provided in Section 1007, the Company will not at any time,
directly or indirectly, create, assume, incur or suffer to be created, assumed
or incurred or to exist any mortgage, pledge, encumbrance or lien or charge of
any kind upon (1) any shares of capital stock of any Principal Constituent Bank
(other than directors', qualifying shares), or (2) any shares of capital stock
of a Subsidiary which owns capital stock of any Principal Constituent Bank;
provided, however, that, notwithstanding the foregoing, the Company may incur or
suffer to be incurred or to exist upon such capital stock (a) liens for taxes,
assessments or other governmental charges or levies which are not yet due or are
payable without penalty or of which the amount, applicability or validity is
being contested by the Company in good faith by appropriate proceedings and the
Company shall have set aside on its books adequate reserves with respect thereto
(segregated to the extent required by generally accepted accounting principles),
or (b) the lien of any judgment, if such judgment shall not have remained
undischarged, or unstayed on appeal or otherwise, for more than 60 days.
SECTION 1009. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, commencing with the first calendar year following the
issuance of Securities of any series under this Indenture, a brief certificate,
which need not comply with Section 102, signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, covering the period from the date of issuance of such Securities to
the end of the calendar year in
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which such Securities were issued, in the case of the first such certificate,
and covering the preceding calendar year in the case of each subsequent
certificate stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a)
the Company has complied with all conditions and covenants on its part
contained in this Indenture throughout such year, or, if there has been
a default by the Company in the performance, observance or fulfillment
of any such condition or covenant, specifying each such default known
to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
For the purpose of this Section 1009, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 50% in principal amount, or if such Securities are not
payable at Maturity for a fixed principal amount, 50% of the aggregate issue
price, of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1011. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
SECTION 1012. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company,
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
such Trustee of such Redemption Date and of the principal amount or amount of
Maturity Consideration of Securities of such series 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 such 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, the
particular Securities to be redeemed shall be selected not more than 60 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 such Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denominations for
Securities of that series or any integral multiple thereof) of the principal
amount or issue price of Securities of such series or a denomination larger than
the minimum authorized denomination for Securities of that series.
Such 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 his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and 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, 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.
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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 such
Trustee in the name and at the expense of the Company. The notice if mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. In any case, a failure to
give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
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 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 Regular 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 premium, if any) 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 such Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and such
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same Series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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.
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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 1202. 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 1202. 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 redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to such Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date such 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.
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 as of the day and year first above written.
FLEET BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
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Title:
THE BANK OF NEW YORK, Trustee
By /s/ Xxxxxxx Xxx
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Title:
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