EXHIBIT 4.1
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XXXXXXX & XXXXX, INC., ISSUER
TO
___________, TRUSTEE
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INDENTURE
DATED AS OF _______ ___, 200__
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[SUBORDINATED] DEBT SECURITIES
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Reconciliation and tie between Indenture, dated as of__________, 200__, and the
Trust Indenture Act of 1939, as amended
TRUST INDENTURE ACT OF 1939 SECTION INDENTURE SECTION
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310 (a)(1) 6.12
(a)(2) 6.12
(a)(3) Not applicable
(a)(4) Not applicable
(a)(5) TIA
(b) 6.3; 6.10
311 (a) 6.3
(b) 6.3
312 (a) 6.8
(b) TIA
(c) TIA
313 (a) 6.7
(b) 6.7
(c) 6.7
(d) 6.7
314 (a) 9.6; 9.7
(b) Not applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not applicable
(d) Not applicable
(e) 1.2
(f) TIA
315 (a) 6.1
(b) 6.6
(c) 6.1
(d)(1) 6.1
(d)(2) 6.1
(d)(3) 6.1
(e) 6.10
316 (a)(1)(A) 5.8
(a)(1)(B) 5.7
(b) 5.10
(c) 1.4
317 (a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318 (a) 1.12
(b) TIA
(c) 1.11; TIA
This reconciliation and tie section does not constitute part of the Indenture
(i)
TABLE OF CONTENTS
PAGE
ARTICLE 1 Definitions and Other Provisions of General Application............................... 1
Section 1.1 Definitions................................................................ 1
Section 1.2 Compliance Certificates and Opinions....................................... 5
Section 1.3 Form of Document Delivered to Trustee...................................... 6
Section 1.4 Acts of Holders............................................................ 6
Section 1.5 Notices, Etc., to Trustee and Company...................................... 7
Section 1.6 Notice to Holders; Waiver.................................................. 7
Section 1.7 Headings and Table of Contents............................................. 7
Section 1.8 Successors and Assigns..................................................... 8
Section 1.9 Separability............................................................... 8
Section 1.10 Benefits of Indenture..................................................... 8
Section 1.11 Governing Law............................................................. 8
Section 1.12 Conflict of Any Provision of Indenture With Trust Indenture Act........... 8
Section 1.13 No Recourse Against Others................................................ 8
Section 1.14 Waiver of Trial by Jury................................................... 8
Section 1.15 Counterparts.............................................................. 8
Section 1.16 Legal Holidays............................................................ 8
ARTICLE 2 Security Forms........................................................................ 8
Section 2.1 Forms Generally............................................................ 8
Section 2.2 Form of Face of Security................................................... 9
Section 2.3 Form of Reverse of Security................................................ 10
Section 2.4 Form of Trustee's Certificate of Authentication............................ 13
ARTICLE 3 The Securities........................................................................ 13
Section 3.1 Amount Unlimited; Issuable in Series....................................... 13
Section 3.2 Denominations.............................................................. 15
Section 3.3 Execution, Authentication, Delivery and Dating............................. 15
Section 3.4 Temporary Securities....................................................... 17
Section 3.5 Registration; Registration of Transfers and Exchanges...................... 17
Section 3.6 Replacement Securities..................................................... 18
Section 3.7 Payment of Interest; Interest Rights Preserved............................. 18
Section 3.8 Persons Deemed Owners...................................................... 19
Section 3.9 Cancellation............................................................... 19
Section 3.10 Computation of Interest................................................... 19
Section 3.11 CUSIP Numbers............................................................. 20
ARTICLE 4 Satisfaction, Discharge and Defeasance................................................ 20
Section 4.1 Termination of Company's Obligations Under the Indenture................... 20
Section 4.2 Application of Trust Funds................................................. 21
Section 4.3 Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.................................... 21
Section 4.4 Defeasance and Discharge................................................... 21
Section 4.5 Covenant Defeasance........................................................ 21
Section 4.6 Conditions to Defeasance or Covenant Defeasance............................ 22
Section 4.7 Deposited Money and Government Obligations to Be Held in Trust............. 23
Section 4.8 Transfers and Distribution at Company Request.............................. 23
(ii)
ARTICLE 5 Defaults and Remedies................................................................. 23
Section 5.1 Events of Default.......................................................... 23
Section 5.2 Acceleration, Rescission and Annulment..................................... 25
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee............ 25
Section 5.4 Trustee May File Proofs of Claim........................................... 25
Section 5.5 Trustee May Enforce Claims Without Possession of Securities................ 25
Section 5.6 Delay or Omission Not Waiver............................................... 26
Section 5.7 Waiver of Past Defaults.................................................... 26
Section 5.8 Control by Majority........................................................ 26
Section 5.9 Limitation on Suits by Holders............................................. 26
Section 5.10 Rights of Holders to Receive Payment...................................... 26
Section 5.11 Application of Money Collected............................................ 27
Section 5.12 Restoration of Rights and Remedies........................................ 27
Section 5.13 Rights and Remedies Cumulative............................................ 27
ARTICLE 6 The Trustee........................................................................... 27
Section 6.1 Certain Duties and Responsibilities........................................ 27
Section 6.2 Rights of Trustee.......................................................... 28
Section 6.3 Trustee May Hold Securities................................................ 29
Section 6.4 Money Held in Trust........................................................ 29
Section 6.5 Trustee's Disclaimer....................................................... 29
Section 6.6 Notice of Defaults......................................................... 29
Section 6.7 Reports by Trustee to Holders.............................................. 29
Section 6.8 Securityholder Lists....................................................... 29
Section 6.9 Compensation and Indemnity................................................. 29
Section 6.10 Replacement of Trustee.................................................... 30
Section 6.11 Acceptance of Appointment by Successor.................................... 31
Section 6.12 Eligibility; Disqualification............................................. 32
Section 6.13 Merger, Conversion, Consolidation or Succession to Business............... 32
Section 6.14 Appointment of Authenticating Agent....................................... 32
Section 6.15 Trustee's Application for Instructions From the Company................... 33
ARTICLE 7 Consolidation, Merger or Sale by the Company.......................................... 34
ARTICLE 8 Amendments and Supplemental Indentures................................................ 34
Section 8.1 Amendments and Supplemental Indentures Without Consent of Holders.......... 34
Section 8.2 With Consent of Holders.................................................... 35
Section 8.3 Compliance With Trust Indenture Act........................................ 35
Section 8.4 Execution of Amendments and Supplemental Indentures........................ 35
Section 8.5 Effect of Amendments and Supplemental Indentures........................... 36
Section 8.6 Reference in Securities to Amendments and Supplemental Indentures.......... 36
ARTICLE 9 Covenants............................................................................. 36
Section 9.1 Payment of Principal, Premium and Interest................................. 36
Section 9.2 Maintenance of Office or Agency............................................ 36
Section 9.3 Money for Securities to Be Held in Trust; Unclaimed Money.................. 36
Section 9.4 Corporate Existence........................................................ 37
Section 9.5 Insurance.................................................................. 37
Section 9.6 Reports by the Company..................................................... 37
Section 9.7 Annual Review Certificate; Notice of Default............................... 38
Section 9.8 Provision of Financial Statements.......................................... 38
(iii)
ARTICLE 10 Redemption........................................................................... 38
Section 10.1 Applicability of Article.................................................. 38
Section 10.2 Election to Redeem; Notice to Trustee..................................... 38
Section 10.3 Selection of Securities to Be Redeemed.................................... 39
Section 10.4 Notice of Redemption...................................................... 39
Section 10.5 Deposit of Redemption Price............................................... 40
Section 10.6 Securities Payable on Redemption Date..................................... 40
Section 10.7 Securities Redeemed in Part............................................... 40
ARTICLE 11 Sinking Funds........................................................................ 40
Section 11.1 Applicability of Article.................................................. 40
Section 11.2 Satisfaction of Sinking Fund Payments With Securities..................... 41
Section 11.3 Redemption of Securities for Sinking Fund................................. 41
ARTICLE 12 SUBORDINATION OF SECURITIES.......................................................... 41
Section 12.1 Securities Subordinated to Senior Indebtedness............................ 41
Section 12.2 Company Not to Make Payments With Respect to Securities in Certain
Circumstances; Limitations on Acceleration of Securities............. 41
Section 12.3 Securities Subordinated to Prior Payment of All Senior Indebtedness
on Dissolution, Liquidation or Reorganization of the Company......... 43
Section 12.4 Holders to Be Subrogated to Rights of Holders of Senior Indebtedness...... 44
Section 12.5 Obligation of the Company Unconditional................................... 44
Section 12.6 Knowledge of Trustee...................................................... 44
Section 12.7 Application by Trustee of Moneys Deposited With It........................ 45
Section 12.8 Subordination Rights Not Impaired by Acts or Omissions of Company or
Holders of Senior Indebtedness....................................... 45
Section 12.9 Holders Authorize Trustee to Effectuate Subordination of Securities....... 45
Section 12.10 Right of Trustee to Hold Senior Indebtedness............................. 45
Section 12.11 Article 12 Not to Prevent Events of Default.............................. 46
Section 12.12 Paying Agents Other Than the Trustee..................................... 46
Section 12.13 Trustee's Compensation Not Prejudiced.................................... 46
Section 12.14 Trust Moneys Not Subordinated............................................ 46
(iv)
INDENTURE, dated as of __________, 200__, between XXXXXXX & XXXXX,
INC., an Ohio corporation, (the "Company"), as issuer, and
___________________________, a __________________ corporation, as Trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make the Securities, when executed by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. (a) For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Board" or "Board of Directors" means the Board of Directors of the
Company, the executive committee or any other duly authorized committee thereof.
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"Board Resolution" means a copy of a resolution of the Board of
Directors certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, the body performing
such duties at such time.
"Company" means the Person named as the Company in the introductory
paragraph of this Indenture until one or more successor corporations shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter means such successors.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President or, with
respect to Sections 3.3, 3.4, 3.5 and 6.1, any other employee of the Company
named in an Officers' Certificate delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"Default" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all the rules and regulations promulgated thereunder.
"Government Obligations" means securities that are (i) direct
obligations of the United States or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depositary receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the Government Obligation evidenced by such depositary receipt.
"Holder" means a person in whose name a Security is registered on the
Register.
"Indebtedness" of any Person as of any date means, without duplication,
all indebtedness of such Person in respect of borrowed money, including all
interest, fees and expenses owed in connection therewith, indebtedness evidenced
by notes, debentures, bonds or other instruments of indebtedness, obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, or obligations under capitalized
leases and equipment leases.
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"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms (but not
defined terms established in an Officers' Certificate or a Board Resolution) of
particular series of Securities established as contemplated by Section 2.1 and
3.1.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the President,
any Executive Vice President, any Senior Vice President, any Vice President or
the Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President or any Vice President.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be (i) the most senior attorney employed by the Company, (ii) the Company's
outside counsel, or (iii) other counsel designated by the Company and who shall
be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security that provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, the payment or
redemption money of which in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (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 provisions therefor satisfactory to the Trustee have been
made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities that have been paid pursuant to the third
paragraph of Section 3.6 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;
-3-
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (y) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, and (z) 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 outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
that the Trustee knows to be so owned shall be so disregarded. Securities so
owned that have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest on such Securities
are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any senior vice president, any vice
president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
other officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
and also means, with respect to a particular corporate trust matter, any other
officer to whom such corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
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"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Senior Indebtedness" means all Indebtedness of the Company (other than
the Securities), unless such Indebtedness by its terms, or the terms of the
instrument creating or evidencing it, is subordinate in right of payment to or
pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which the Company at the time
owns or controls, directly or indirectly, more than 50% of the shares of
outstanding stock having general voting power under ordinary circumstances to
elect a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency).
"Trustee" means the party named as such in the introductory paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in effect on the date of this Indenture, except as provided in
Section 8.3.
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a series of Securities or, if applicable, at
the most recent determination of interest on such series, in accordance with
accepted financial practice.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term Section
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"Act" 1.4 (a)
"Bankruptcy Law" 5.1
"Custodian" 5.1
"Defaulted Interest" 3.7
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
Section 1.2 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
-5-
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.1, 3.1, 3.3 and 9.7) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3 Form of Document 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 certificates or opinions 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 would have known, 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
would have known, that the certificate or opinion or representations as 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 1.4 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by the Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner that the Trustee deems
sufficient.
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(c) The ownership of Securities shall be proved by the
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 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) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to an Officers' Certificate
delivered to the Trustee, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized,
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided, however, that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
clause (a) of this Section 1.4 not later than 180 days after the record date.
Section 1.5 Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at Xxxxxxx & Xxxxx, Inc., 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, Attention: Secretary or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided or otherwise agreed to by a Holder)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Register, within the time
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. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be equivalent to such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
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Section 1.8 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto, any Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder, and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.11 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
Section 1.12 Conflict of Any Provision of Indenture With Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with any provision (an "incorporated provision") required
by or deemed to be included in this Indenture by operation of the Trust
Indenture Act, such imposed duties or incorporated provisions shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
Section 1.13 No Recourse Against Others. A director, officer, employee
or shareholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting any of the Securities waives and releases all
such liability.
Section 1.14 Waiver of Trial by Jury. The Company, the Trustee and the
Holders hereby irrevocably and unconditionally waive the right to trial by jury
in connection with any claim arising out of or relating to the Securities and
under this Indenture.
Section 1.15 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one instrument.
Section 1.16 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security other
than a provision in the Securities of any series that specifically states that
such provision shall apply in lieu of this Section) payment of principal,
premium, if any, or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such date; provided,
however, that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series shall be in
substantially the form set forth in this Article, or in such other form or forms
as shall be established by delivery to the Trustee of an Officers' Certificate
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
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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 temporary Securities of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the form of Securities of any series are established by
an Officers' Certificate, such Officers' Certificate shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, all as determined by the Officers executing such Securities as evidenced
by their execution of such Securities.
Section 2.2 Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert FOR PURPOSES XX XXXXXXXX 0000 XXX 0000 XX XXX
XXXXXX XXXXXX INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON
THIS SECURITY IS ________% OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS
_______________, 200___ [, -- AND] THE YIELD TO MATURITY IS ________%. [THE
METHOD USED TO DETERMINE THE YIELD IS ____________________ AND THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
______________, 200___ TO _____________________, 200___ IS _________% OF THE
PRINCIPAL AMOUNT OF THIS SECURITY.]]
XXXXXXX & XXXXX, INC.
$_______________ No. ___________
XXXXXXX & XXXXX, INC., a corporation duly organized and existing under
the laws of the state of Ohio (herein called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________________________ or
registered assigns, the principal sum of ________________________ Dollars
($____________) on________________. [If the Security is to bear interest prior
to Maturity: and to pay interest thereon from
___________________________________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on
________________ and ________________ in each year, commencing ________________,
[If the Security is to bear interest at a fixed rate: at the rate of
____________% per annum] [if the Security is to bear interest at an adjustable
rate: at a rate per annum computed or determined in accordance with the
provisions below], until the principal hereof is paid or made available for
payment [If applicable: and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of ________% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
____________ or (whether or not a Business Day), as the case may be, the next
Business Day preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity: The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration or redemption or at the Stated
Maturity and, in such case, the overdue principal of this Security shall bear
interest at the rate of ________% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any
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overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of
________% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.] Payment of the principal of
(and premium, if any, on) and [If applicable: any such] interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the city and state of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable: provided, however, that at the option
of the Company payment of interest may be made by check mailed on or before the
relevant Interest Payment Date to the address of the Person entitled thereto as
such address shall appear in the Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:__________________
XXXXXXX & XXXXX, INC.
By:_________________________
Attest:_________________
Section 2.3 Form of Reverse of Security. This Security is one of a duly
authorized issue of securities of the Company (herein called the "Securities")
issued and to be issued in one or more series under an Indenture, dated as of
________________, 200___ (herein called the "Indenture"), between the Company
(which term includes any successor corporation under the Indenture) and
_____________________________________________, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of which this Security is a part), to which the Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [,
limited in aggregate principal amount to $_____________________]. [If
applicable: The Securities of this series are subject to redemption upon not
less than 30 days' notice by mail, [if applicable: (1) on ________________ in
any year commencing with the year ________________ and ending with the year
________________ at a Redemption Price equal to ________% of the principal
amount and (2)] at any time [on or after 200__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before _______________,
_______%, and if redeemed] during the 12-month period beginning _____________ of
the years indicated,
[If applicable: The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all indebtedness and obligations of the Company as
are defined in the Indenture as "Senior Indebtedness," and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, agrees to and shall be bound by
such provisions. Each Holder of this Security, by accepting the same, agrees
that each holder of Senior Indebtedness, whether created or acquired before or
after the issuance of this Security, shall be deemed
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conclusively to have relied on such subordination provisions in acquiring, or in
continuing to hold, such Senior Indebtedness.]
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.] [If applicable: The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ________________
in any year commencing with the year _____________ and ending with the year
________________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below
and (2) at any time [on or after ________________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning ________________ of the years indicated,
Redemption Price for Redemption Through Redemption Price for Redemption Otherwise
Year Operation of the Sinking Fund Than Through Operation of the Sinking Fund
---- --------------------------------------- ------------------------------------------
and thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_______________, redeem any Securities of this series as contemplated by [clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ________% per annum.]
[The sinking fund for this series provides for the redemption on
____________ in each year beginning with the year _____________ and ending with
the year ___________ of [not less than] $______________ [("mandatory sinking
fund")] and not more than $____________ aggregate principal amount of Securities
of this series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the [describe order] order in which they become due.]]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable: The Securities of this series are subject to the
covenant defeasance provisions set forth in Article Four of the Indenture.]
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[If the Security is not an Original Issue Discount Security: If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security: If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to [insert formula for determining the amount]. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Outstanding Securities of each series, on behalf of the Holders of all
Outstanding Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the amount of principal of (and premium,
if any, on) and interest, if any, on this Security herein provided, and at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of (and premium, if any, on) and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of different authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company nor
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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Section 2.4 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
__________________________________
as Trustee
By:_______________________________
Authorized Signatory
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(b) The following matters shall be established and
(subject to Section 3.3) set forth, or determined in the manner provided, in an
Officers' Certificate and a Board Resolution of the Company or one or more
indentures supplemental hereto:
(1) the title of the Securities of the series
(which title shall distinguish the Securities of the series
from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of the series that may be
authenticated and delivered under this Indenture (which limit
shall not pertain to (i) Securities authenticated and
delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6, or 10.7 and (ii) any Securities
that, pursuant to the last paragraph of Section 3.3, are
deemed never to have been authenticated and delivered
thereunder);
(3) the date or dates on which the principal of
the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date or dates
from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where, subject to the
provisions of Section 9.2, the principal of, premium, if any,
and interest, if any, on Securities of the series shall be
payable;
(6) the period or periods within which, the
price or prices at which, and the other terms and conditions
upon which, Securities of the series may be redeemed, in whole
or in part, at the option of the Company and, if other than as
provided in Section 10.3, the manner in which the particular
Securities of such series (if less than all Securities of such
series are to be redeemed) are to be selected for redemption;
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(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or upon the happening of
a specified event or at the option of a Holder thereof and the
period or periods within which, the price or prices at which,
and the other terms and conditions upon which, Securities of
the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if the amount of payments or principal of,
premium, if any, and interest, if any, on the Securities of
the series shall be determined with reference to an index,
formula or other method, the index, formula or other method by
which such amounts shall be determined;
(10) if other than the principal amount thereof,
the portion of the principal amount of such Securities of the
series that shall be payable upon declaration of the
acceleration thereof pursuant to Section 5.2 or the method by
which such portion shall be determined;
(11) if other than as provided in Section 3.7,
the Person to whom any interest on any Security of the series
shall be payable and the extent to which, or the manner in
which (including any certification requirement and other terms
and conditions under which), any interest payable on a
temporary Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 3.4, as
applicable;
(12) provisions, if any, granting special rights
to the Holders of Securities of the series upon the occurrence
of such events as may be specified;
(13) any deletions from, modifications of or
additions to the Events of Default set forth in Section 5.1 or
covenants of the Company set forth in Article 9 pertaining to
the Securities of the series;
(14) under what circumstances, if any, the
Company will pay additional amounts on the Securities of that
series held by a Person who is not a U.S. Person in respect of
taxes or similar charges withheld or deducted and, if so,
whether the Company will have the option to redeem such
Securities rather than pay such additional amounts (and the
terms of any such option);
(15) the date as of which any temporary Security
representing outstanding Securities of the series shall be
dated if other than the date of original issuance of the first
Security of the series to be issued;
(16) the applicability, if any, to the Securities
of or within the series of Sections 4.4 and 4.5, or such other
means of defeasance or covenant defeasance as may be specified
for the Securities of such series;
(17) if other than the Trustee, the identity of
the Registrar and any Paying Agent;
(18) any terms that may be related to warrants
issued by the Company in connection with, or for the purchase
of, Securities of such series, including whether and under
what circumstances the Securities of any series may be used
toward the exercise price of any such warrants; and
(19) [if applicable: any deletions from,
modifications of or additions to the subordination provisions
set forth in Article 12 pertaining to the Securities of the
Series;]
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(20) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture), including any terms that may be required by or
advisable under United States laws or regulations or advisable
in connection with the marketing of Securities of the series.
(c) All Securities of any one series shall be
substantially identical except as to denomination and the rate or rates of
interest, if any, and Stated Maturity, the date from which interest, if any,
shall accrue and except as may otherwise be provided in or pursuant to an
Officers' Certificate pursuant to this Section 3.1 or in an indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
(d) If any of the terms of the Securities of any series
are established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be certified by the 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, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof. With respect to Securities of a series subject to a Periodic
Offering, such Board Resolution or Officers' Certificate may provide general
terms for Securities of such series and provide either that the specific terms
of particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, in accordance with the
Company Order as contemplated by the third paragraph of Section 3.3.
Section 3.2 Denominations. The Securities of each series shall be
issuable only in definitive registered form without coupons and in such
denominations as shall be specified as contemplated by Section 3.1. 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 3.3 Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by the Chairman, President or Chief
Executive Officer and attested to by the Secretary of the Company. The
signatures of such Officers on the Securities may be manual or facsimile
signatures of the present or any future such authorized Officers and may be
imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities
of any series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and make available for
delivery such Securities, and the Trustee, in accordance with the Company Order,
shall authenticate and deliver such Securities; provided, however, that in the
case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as permitted by
Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating that,
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(a) the forms and terms of such Securities have been
established in conformity with the provisions of this Indenture, and
(b) such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(y) that the forms of such Securities have been, and the
terms of such Securities (when established in accordance with such
procedures as may be specified from time to time in a Company Order,
all as contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to Section 3.1, as the case may be) will
have been, established in conformity with the provisions of this
Indenture; and
(z) that such Securities, when (1) executed by the
Company, (2) completed, authenticated and delivered by the Trustee in
accordance with this Indenture, and (3) issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
customary exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 3.1, as applicable, at or prior
to the time of the first authentication of Securities of such series unless and
until it has received written notification that such Opinion of Counsel or other
documents have been superseded or revoked. In connection with the authentication
and delivery of Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any rules, regulations
or orders of any governmental agency or commission having jurisdiction over the
Company.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as permitted by
Sections 2.1 and 3.1, the Trustee shall have the right to decline to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 at or prior to the time of the authentication
of each Security of such series if the Officers' Certificate is delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of one of the authorized signatories of the Trustee or an
Authenticating Agent. Such signature upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered under this Indenture and is entitled to the benefits of this
Indenture.
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Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and, upon Company Order, the
Trustee shall authenticate and deliver temporary Securities of such series that
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause permanent Securities of such series to be prepared without unreasonable
delay. After preparation of such permanent Securities, the temporary Securities
shall be exchangeable for such permanent Securities of like tenor upon surrender
of the temporary Securities of such series at the office or agency of the
Company pursuant to Section 9.2 in a Place of Payment for such series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
permanent Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as permanent
Securities of such series except as otherwise specified as contemplated by
Section 3.1.
Section 3.5 Registration; Registration of Transfers and Exchanges. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency to be maintained by the Company in accordance with
Section 9.2 in a Place of Payment a register (the "Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and the registration of transfers of
Securities. The Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby appointed "Registrar" for the purpose of registering 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 maintained pursuant to Section 9.2 in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
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
like aggregate principal amount containing identical terms and provisions, 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 that the Holder
making the exchange is entitled to receive.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities that the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture as the
Securities surrendered upon such registration of such transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Registrar or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to those of the Company, the Registrar and the Trustee requiring
such written instrument of transfer duly executed by the Holder thereof or his
attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or for
any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 3.6 or 10.7 not involving any transfer.
The Company shall not be required to (i) issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed or (ii) register the transfer of or exchange of any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Each Holder agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such
Holder's Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
Section 3.6 Replacement Securities. If a mutilated Security is
surrendered to the Trustee, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver a replacement Security of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agency of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security, a replacement
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee connected therewith).
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by any Person, 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 3.7 Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.1, interest, if any, on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency maintained
for such purpose pursuant to Section 9.2; provided, however, that, at the option
of the Company, interest on any series of Securities that bear interest may be
paid (i) by check mailed to the address of the Person entitled thereto as it
shall appear on the Register of Securities of such series or (ii) to the extent
specified as contemplated by Section 3.1, by wire transfer to an account
maintained by the Person entitled thereto as specified in the Register of
Securities of such series.
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Unless otherwise provided as contemplated by Section 3.1, any interest
on any Security of any series that is payable, but is not punctually paid or
duly provided for, on any interest payment date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (a) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest that shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at the Holder's
address as it appears in the Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (b).
(b) The Company may make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause (b), such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of,
or in exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
Section 3.8 Persons Deemed Owners. Prior to due presentment of any
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 3.9 Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and any Paying Agent
shall forward to the Trustee any Securities surrendered to them for replacement,
for registration of transfer, or for exchange, payment, redemption or
cancellation. The Trustee shall cancel all Securities surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may dispose of cancelled Securities and issue a certificate
of destruction to the Company. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation, except as expressly permitted in the terms of Securities for any
particular series or as permitted pursuant to the terms of this Indenture.
Section 3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1 (i) interest on any Securities that bear interest at
a fixed rate shall be computed on the basis of a 360-day year
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consisting of 12 months of 30 days each and (ii) interest on any Securities that
bear interest at a variable rate shall be computed on the basis of the actual
number of days in an interest period divided by 360.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" numbers of the Securities in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the Indenture.
Except as otherwise provided as contemplated by Section 3.1, this Indenture
shall upon Company Request cease to be of further effect with respect to
Securities of or within any series (except as to any surviving rights of
registration of transfer or exchange of such Securities and replacement of such
Securities that may have been lost, stolen or mutilated as herein expressly
provided for) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities when:
(a) either
(1) all such Securities previously authenticated
and delivered (other than (i) such Securities that have been
lost, stolen or mutilated and that have been replaced or paid
as provided in Section 3.6, and (ii) such Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 9.3) have been delivered to the Trustee
for cancellation; or
(2) all Securities of such series not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for that purpose
an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with
respect thereto, to the date of such deposit (in the
case of Securities that have become due and payable)
or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.9, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (2) of
clause (a) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 9.3 shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal, premium, if any, and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's Option to
Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.1 provision
is made for either or both of (i) defeasance of the Securities of or within a
series under Section 4.4 or (ii) covenant defeasance of the Securities of or
within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.8 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities, shall be applicable to
such Securities, and the Company may at its option by Board Resolution, at any
time, with respect to such Securities, elect to have Section 4.4 (if applicable)
or Section 4.5 (if applicable) be applied to such Outstanding Securities upon
compliance with the conditions set forth below in this Article.
Section 4.4 Defeasance and Discharge. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities on the date the
conditions set forth in Section 4.6 are satisfied (hereinafter "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.7 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all of its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall on Company Order execute proper
instruments acknowledging the same), except the following, which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of the
Holders of such Securities to receive, solely from the trust funds described in
Section 4.6(a) and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest, if any, on such Securities
when such payments are due; (ii) the Company's obligations with respect to such
Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment
of additional amounts, if any, payable with respect to such Securities as
specified pursuant to Section 3.1(b)(16); (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder; and (iv) this Article 4. Subject
to compliance with this Article 4, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 4.5
with respect to such Securities. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
Section 4.5 Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Article 7 and Sections 9.4 through 9.8, and, if specified
pursuant to Section 3.1, its obligations under any other covenants, with respect
to such Securities on and after the date the conditions set forth in Section 4.6
are satisfied (hereinafter, "covenant defeasance"), and such Securities shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Article 7 and Sections 9.4 through 9.8, or such
other covenants, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no
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liability in respect of any term, condition or limitation set forth in any such
Section or such other covenants, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other covenants or by
reason of reference in any such Section or such other covenants to any other
provision herein or in any other document, and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.1(c) or 5.1(g) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee satisfying
the requirements of Section 6.11 who shall agree to comply with, and
shall be entitled to the benefits of, the provisions of Sections 4.3
through 4.8 inclusive and the last paragraph of Section 9.3 applicable
to the Trustee, for purposes of such Sections also a "Trustee") as
trust funds in trust for the purpose of making the payments referred to
in clauses (y) and (z) of this Section 4.6(a), specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities, with instructions to the Trustee as to the application
thereof, (i) money in an amount, or (ii) if Securities of such series
are not subject to repayment at the option of Holders, Government
Obligations that through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment referred to in clause
(y) or (z) of this Section 4.6(a), money in an amount, or (iii) a
combination thereof in an amount sufficient to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (y) the
principal of, premium, if any, and interest, if any, on such Securities
on the Maturity of such principal or installment of principal or
interest and (z) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article 10 that shall be given effect in applying the
foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or result in a breach or violation of, or
constitute a default under, any other material agreement or instrument
to which the Company is a party or by which it is bound.
(c) No Default or Event of Default under Section 5.1(e)
or 5.1(f) with respect to such Securities shall have occurred and be
continuing during the period commencing on the date of such deposit and
ending on the 91st day after such date (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of such Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(e) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize
income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
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(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 4.4 or Section
4.5 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee
for such trust funds or (ii) all necessary registrations under said act
have been effected.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute terms,
conditions or limitations that may be imposed on the Company in
connection therewith as contemplated by Section 3.1.
Section 4.7 Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6(a) in respect of any Securities of any series shall be
held in trust and applied by the Trustee, 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 Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Section 4.8 Transfers and Distribution at Company Request. To the
extent permitted by the Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 76, as amended or interpreted by the
Financial Accounting Standards Board from time to time, or any successor thereto
("Standard No. 76"), or to the extent permitted by the Commission, the Trustee
shall, from time to time, take one or more of the following actions as specified
in a Company Request:
(a) Retransfer, reassign and deliver to the Company any
securities deposited with the Trustee pursuant to Section 4.6(a),
provided that the Company shall, in substitution therefor,
simultaneously transfer, assign and deliver to the Trustee other
Government Obligations appropriate to satisfy the Company's obligations
in respect of the relevant Securities; and
(b) The Trustee (and any Paying Agent) shall promptly pay
to the Company upon Company Request any excess money or securities held
by it at any time, including, without limitation, any assets deposited
with the Trustee pursuant to Section 4.6(a) exceeding those necessary
for the purposes of Section 4.6(a).
The Trustee shall not take the actions described in subsections (a) and
(b) of this Section 4.8 unless it shall have first received a written report of
a nationally recognized independent public accounting firm, (i) expressing its
opinion that the contemplated action is permitted by Standard No. 76 or the
Commission, for transactions accounted for as extinguishment of debt under the
circumstances described in paragraph 3.c of Standard No. 76 or any successor
provision and (ii) verifying the accuracy, after giving effect to such action or
actions, of the computations that demonstrate that the amounts remaining to be
earned on the Government Obligations deposited with the Trustee pursuant to
Section 4.6(a) will be sufficient for purposes of Section 4.6(a).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
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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):
(a) the Company defaults in the payment of interest on
any Security of that series or any additional amount payable with
respect to any Security of that series as specified pursuant to Section
3.1(b)(14) when the same becomes due and payable and such default
continues for a period of 30 days;
(b) the Company defaults in the payment of the principal
of or any premium on any Security of that series when the same becomes
due and payable at its Maturity or on redemption or otherwise, or in
the payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series, and in each case such default
continues for a period of 10 days;
(c) the Company defaults in the performance of, or
breaches, any covenant or warranty of the Company in this Indenture
with respect to any Security of that series (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and such default or breach
continues for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the Company defaults under the terms of any agreement
or instrument evidencing or under which the Company has at the date of
this Indenture or hereafter outstanding any indebtedness for borrowed
money and such indebtedness shall be accelerated so that the same shall
be or become due and payable prior to the date on which the same would
otherwise become due and payable and the aggregate principal amount
thereof so accelerated exceeds $10 million and such acceleration is not
rescinded or annulled within 10 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default and stating that such notice is a
"Notice of Default" hereunder (it being understood, however, that,
subject to the provisions of Section 6.1, the Trustee shall not be
deemed to have knowledge of such default under such agreement or
instrument unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (ii) a Responsible Officer of
the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such agreement or other instrument);
provided, however, that if such default under such agreement or
instrument is remedied or cured by the Company or waived by the holders
of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of such Holders;
(e) the Company pursuant to or within the meaning of any
Bankruptcy Law (as defined below) (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian (as
defined below) of it or for all or substantially all of its property,
or (iv) makes a general assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law (as defined below) that (i) is for
relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company or for all or substantially all of its
property, or (iii) orders the liquidation of the Company; and the order
or decree remains unstayed and in effect for 90 consecutive days; or
(g) any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that series.
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The term "Bankruptcy Law" means Title 11, U.S. Code, as amended from
time to time, or any similar federal or state law for the relief of debtors. The
term "Custodian" means any custodian, receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
Section 5.2 Acceleration, Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the outstanding Securities of that series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable and upon any such declaration such principal
(or, in the case of original Issue Discount Securities or Indexed Securities,
such specified amount) shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate principal
amount of the outstanding Securities of that series, by written notice to the
Trustee, may rescind and annul such declaration and its consequences if all
existing Defaults and Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that series
that has become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(a) 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 90 days, or
(b) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in any
judicial proceedings relating to the Company, its creditors or its property.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto.
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Section 5.6 Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series by notice to
the Trustee may waive on behalf of the Holders of all Securities of such series
a past Default or Event of Default with respect to that series and its
consequences except (i) a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any Security of such series or
(ii) in respect of a covenant or provision hereof that pursuant to Section 8.2
cannot be amended or modified without the consent of the Holder of each
Outstanding Security of such series adversely affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture.
Section 5.8 Control by Majority. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected (with
each such series voting as a class) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it with respect to
Securities of that series; provided, however, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting, or that would in the
good-faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability, and (iii) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 5.9 Limitation on Suits by Holders. 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:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to institute any
such proceedings; and
(e) during such 60-day period, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal of, premium, if any, and, subject to Section 3.7,
interest on the Security, on or after the respective due dates expressed in the
Security (or, in case of
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redemption, on the Redemption Dates), or, subject to Section 5.9, to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Securities for principal of, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company.
Section 5.12 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 5.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(1) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture with
respect to the Securities of such series, and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any
series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(c) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate.
(d) The Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
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(g) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or negligence of any agent
or attorney appointed with due care.
(h) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized
or within its rights or powers.
(i) The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 6.3 Trustee May Hold Securities. The Trustee, any Paying Agent,
any Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company
or an Affiliate or Subsidiary of the Company with the same rights it would have
if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 6.4 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 6.5 Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities. The Trustee shall
not be accountable for the Company's use of the proceeds from the Securities or
for monies paid over to the Company pursuant to the Indenture.
Section 6.6 Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to the Trustee,
the Trustee shall, within 90 days after it occurs, transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured Defaults known to it; provided, however, that, except in the case of
a Default in payment on the Securities of any series, the Trustee may withhold
the notice if and so long as its board of directors or the executive committee
thereof or a committee of its Responsible Officers in good faith determines that
withholding such notice is in the interests of the Holders of Securities of that
series; provided further that, in the case of any default or breach of the
character specified in Section 5.1(c) with respect to the Securities of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof.
Section 6.7 Reports by Trustee to Holders. Within 60 days after each
May 15 of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a
brief report dated as of such May 15 if required by Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with Section 313(b) and (d) of the
Trust Indenture Act.
Section 6.8 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession of the Registrar, the Company or any of its Paying
Agents other than the Trustee as to the names and addresses of Holders of
Securities of each such series.
Section 6.9 Compensation and Indemnity. (a) The Company shall pay to
the Trustee from time to time such compensation as shall be agreed between the
Company and the Trustee for all services rendered by it hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express
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trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of- pocket expenses incurred by it in connection with the performance of its
duties under this Indenture, except any such expense as may be attributable to
its negligence or bad faith. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold
it harmless against, any loss, liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent.
(c) The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to the Securities
of any series on all money or property held or collected by the Trustee, except
that held in trust to pay principal, premium, if any, and interest on particular
Securities.
(e) When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 5.1(e) or Section
5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Bankruptcy Law or other similar
law.
(f) The provisions of this Section shall survive the
termination of this Indenture.
Section 6.10 Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of any series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.11
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may remove the Trustee with
respect to that series by so notifying the Trustee and the Company, and may
appoint a successor Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least 180 days; or
(2) the Trustee shall cease to be eligible under
Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a
Security for at least 180 days; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver or public
officer takes charge of the Trustee or its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
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then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least 180 days 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 resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
one or more series, the Company, by or pursuant to Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least 180 days may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11 Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee, without further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 1.6. Each notice shall include the name of the successor Trustee with
respect to the securities of such series and the address of its Corporate Trust
office.
Section 6.12 Eligibility; Disqualification. There shall at all times be
a Trustee hereunder that shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50 million. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.13 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities that shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $10 million and subject to supervision or examination by
federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such corporation shall be otherwise eligible
under this Section without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all the Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation, including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
________________________________
as Trustee
By: ____________________________
as Authenticating Agent
By: ____________________________
Authorized Officer
Section 6.15 Trustee's Application for Instructions From the Company.
Any application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than 15 Business
Days after the date any Officer of the Company actually receives such
application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
The Company may merge or consolidate with or into any other corporation
or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its assets to any person, firm or corporation, if (i) (A) in the case of
a merger or consolidation, the Company is the surviving corporation or (B) in
the case of a merger or consolidation where the Company is not the surviving
corporation and in the case of any such sale, conveyance or other disposition,
the successor or acquiring corporation is a corporation organized and existing
under the laws of the United States or a state thereof and such corporation
expressly assumes by supplemental indenture all of the obligations of the
Company under the Securities and under this Indenture, (ii) immediately
thereafter, giving effect to such merger or consolidation, or such sale,
conveyance, transfer or other disposition, no Default or Event of Default shall
have occurred and be continuing, and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such merger or consolidation, or such sale, conveyance, transfer or other
disposition, complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
In the event of the assumption by a successor corporation of the
obligations of the Company as provided in clause (i)(B) of the immediately
preceding sentence, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities and all such
obligations of the Company shall terminate.
ARTICLE 8
AMENDMENTS AND SUPPLEMENTAL INDENTURES
Section 8.1 Amendments and Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into amendments or indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities;
(b) 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;
(c) to add any additional Events of Default with respect
to all or any series of Securities;
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to facilitate
the issuance of Securities in global form;
(e) to add to, change or eliminate any of the provisions
of this Indenture, provided that any such addition, change or
elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
amendment or supplemental indenture that is entitled to the benefit of
such provision;
(f) to secure the Securities;
(g) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
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(h) 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 Sections 6.10 and 6.11;
(i) to correct or supplement any provision herein that
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 to cure any ambiguity or correct any mistake.
Section 8.2 With Consent of Holders. With the written consent of the
Holders of a majority of the aggregate principal amount of the Outstanding
Securities of all series adversely affected by such amendment or supplemental
indenture (with all such affected series acting together as a single class), the
Company and the Trustee may enter into an amendment or indenture or indentures
supplemental hereto to add any provisions to or to change or eliminate any
provisions of this Indenture or of any other indenture supplemental hereto or to
modify the rights of the Holders of Securities of each such series; provided,
however, that without the consent of the Holder of each Outstanding Security
affected thereby, an amendment or supplemental indenture under this Section may
not:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the coin or currency in which any
Securities or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) [if applicable: or modify the provisions
of this Indenture with respect to the subordination of the Securities
in a manner adverse to the Holders];
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series the consent of whose Holders is
required for any such amendment or 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;
(c) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 9.2; or
(d) make any change in Section 5.7 or this Section 8.2
except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the
consent of the Holders of each Outstanding Security affected thereby.
An amendment or supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture, that has expressly been included
solely for the benefit of one or more particular series of Securities, or that
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed amendment or supplemental indenture, but
it is sufficient if they consent to the substance thereof.
Section 8.3 Compliance With Trust Indenture Act. Every amendment and
supplemental indenture executed pursuant to this Article shall comply with the
requirements of the Trust Indenture Act as then in effect.
Section 8.4 Execution of Amendments and Supplemental Indentures. In
executing, or accepting the additional trusts created by, any amendment or
supplemental indenture permitted by this Article or the modification
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thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such amendment or supplemental indenture that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 8.5 Effect of Amendments and Supplemental Indentures. Upon the
execution of any amendment or supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such amendment or
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 8.6 Reference in Securities to Amendments and Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any amendment or supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such amendment or 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 amendment or supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of, premium, if any, and
interest, if any, on the Securities of that series in accordance with the terms
of the Securities of such series and this Indenture. An installment of principal
or interest shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date money designated for and sufficient to pay the
installment.
Section 9.2 Maintenance of Office or Agency. The Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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.
Unless otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent.
Section 9.3 Money for Securities to Be Held in Trust; Unclaimed Money.
If the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium, if any, or interest, if any, so
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becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest, if any, on Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making
of any payment of principal, premium, if any, or interest, if any, on
the Securities; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 9.4 Corporate Existence. Subject to Article 7, the Company will
at all times do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights and franchises;
provided, however, that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and does not materially adversely affect the ability of the
Company to operate its business or to fulfill its obligations hereunder.
Section 9.5 Insurance. The Company covenants and agrees that it will
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations or through a
program of self-insurance in such amounts and covering such risks as are
consistent with sound business practice for corporations engaged in the same or
a similar business similarly situated.
Section 9.6 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and
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regulations prescribe) that the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time
by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture, as may be required from time
to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 9.6, as may be required by rules and regulations prescribed
from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Default. The Company
covenants and agrees to deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a brief certificate from the principal
executive officer, principal financial officer, or principal accounting officer
as to his knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 9.7, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. The Company shall file with
the Trustee written notice of the occurrence of any Event of Default within 30
Business Days of its becoming aware of any such Event of Default.
Section 9.8 Provision of Financial Statements. If the Company is not
required to file with the Commission periodic reports and other information
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act, the Company shall
furnish without cost to each Holder and file with the Trustee (i) within 135
days after the end of each fiscal year, annual reports containing the
information required to be contained in Items 1, 2, 3, 5, 6, 7, 8 and 9 of Form
10-K promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (ii) within
60 days after the end of each of the first three fiscal quarters of each fiscal
year, quarterly reports containing the information required to be contained in
Form 10-Q promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form, and (iii) promptly
from the time after the occurrence of an event required to be therein reported,
such other reports containing information required to be contained in Form 8-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in any successor form. The Company shall also make such
reports available to prospective purchasers of the Securities, securities
analysts and broker-dealers upon their request.
ARTICLE 10
REDEMPTION
Section 10.1 Applicability of Article. Securities of any series that
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
3.1 for Securities of any series) in accordance with this Article.
Section 10.2 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution or any Officers' Certificate. In the case of any redemption at the
election of the Company of less than all the Securities, if any, of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, the principal amount of Securities of such
series to be
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redeemed and, if applicable, the tenor of the Securities to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company that
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or condition.
Section 10.3 Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all of the Securities of
a series with the same original issue date, interest rate and Stated Maturity
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected by the Trustee
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities 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 that has been or is to be redeemed.
Section 10.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if fewer than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Security
or Securities to be redeemed;
(d) in case any Security is to be redeemed in part only,
the notice that relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(e) the Place or Places of Payment where such Securities
maturing after the Redemption Date are to be surrendered for payment
for the Redemption Price;
(f) that Securities of the series called for redemption
must be surrendered to the Paying Agent to collect the redemption
price;
(g) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said Redemption Date;
(h) that the redemption is for a sinking fund, if such is
the case; and
(i) the CUSIP number of the applicable series of
Securities.
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Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.5 Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.3) an amount of money sufficient to pay on the Redemption
Date the Redemption Price of, and (unless the Redemption Date shall be an
Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof that are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Except as provided in the next
succeeding paragraph, upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
3.1, installments of interest on Securities whose Stated Maturity is prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so require, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series, the same form and the same Maturity in any authorized denomination equal
in aggregate principal amount to the unredeemed portion of the principal of the
Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 11.2 Satisfaction of Sinking Fund Payments With Securities. The
Company may (i) deliver Outstanding Securities of a series (other than any
previously called for redemption) and (ii) apply as a credit Securities of a
series that have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 11.3 Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, that is to be satisfied by
payment of cash and the portion thereof, if any, that is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2, and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 10.3 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
ARTICLE 12
SUBORDINATION OF SECURITIES
Section 12.1 Securities Subordinated to Senior Indebtedness. (a) The
Company agrees, and each Holder of the Securities by acceptance thereof likewise
agrees, that the payment of the principal of, premium, if any, and interest on
the Securities is subordinated, to the extent and in the manner provided in this
Article 12, to the prior payment in full of all Senior Indebtedness of the
Company.
(b) All provisions of this Article 12 shall be subject to
Section 12.14.
Section 12.2 Company Not to Make Payments With Respect to Securities in
Certain Circumstances; Limitations on Acceleration of Securities. (a) Upon the
maturity of any Senior Indebtedness of the Company by lapse of time,
acceleration or otherwise, all obligations with respect thereto shall first be
paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holders of such Senior Indebtedness, before any payment is
made on account of the principal of, premium, if any, or interest on the
Securities or to redeem, retire, purchase, deposit moneys for the defeasance of
or acquire any of the Securities.
(b) Upon the happening of (i) any default in payment of
any Senior Indebtedness of the Company or (ii) any other default on Senior
Indebtedness of the Company, and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms, then, unless (w) such default relates
to Senior Indebtedness of the Company in an aggregate amount equal to or less
than $10 million, (x) such default shall have been cured or waived or shall have
ceased to exist, (y) any such acceleration has been rescinded, or (z) such
Senior Indebtedness has been paid in full, no direct or indirect payment in
cash, property or securities, by set-off or otherwise (except payment of the
Securities from funds previously deposited in accordance with Section 4.1 at any
time such deposit was not prohibited by this Indenture), shall be made or agreed
to be made by the Company on account of the principal of, premium, if any, or
interest on the Securities, or in respect of any redemption, retirement,
purchase, deposit of moneys for the defeasance or other acquisition of any of
the Securities in the case of such a default in Senior Indebtedness of the
Company, and the Company shall not deposit money for any such payment or
distribution with the Trustee or any Paying Agent nor shall the Company (if the
Company is acting as its own Paying Agent) segregate and hold in trust money for
any such payment or distribution.
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(c) Upon the happening of an event of default (other than
under circumstances when the terms of paragraph (b) of this Section 12.2 are
applicable) with respect to any Senior Indebtedness of the Company pursuant to
which the holders thereof are entitled under the terms of such Senior
Indebtedness to immediately accelerate the maturity thereof (without further
notice or expiration of any applicable grace periods), upon written notice
thereof given to each of the Company and the Trustee by the trustee for or other
representative of the holders of at least $10 million of Senior Indebtedness of
the Company (a "Payment Notice"), then, unless and until such event of default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment in cash, property or securities, by set-off or otherwise
(except payment of the Securities from funds previously deposited in accordance
with Section 4.1 at any time such deposit was not prohibited by this Indenture),
shall be made or agreed to be made by the Company on account of the principal
of, premium, if any, or interest on the Securities, or in respect of any
redemption, retirement, purchase, deposit of moneys for the defeasance or other
acquisition of any of the Securities, and the Company shall not deposit money
for any such payment or distribution with the Trustee or any Paying Agent nor
shall the Company or a Subsidiary (if the Company or such Subsidiary is acting
as Paying Agent) segregate and hold in trust money for any such payment or
distribution (a "Payment Block"); provided, however, that this paragraph shall
not prevent the making of any payment for more than 120 days after a Payment
Notice shall have been given unless the Senior Indebtedness in respect of which
such event of default exists has been declared due and payable in its entirety,
in which case no such payment shall be made until such acceleration has been
rescinded or annulled or such Senior Indebtedness has been paid in full in
accordance with its terms. Notwithstanding the foregoing, (i) not more than one
Payment Notice shall be given with respect to a particular event of default
(which shall not bar subsequent Payment Notices for other such events of
default), (ii) all events of default under Senior Indebtedness occurring within
any 30-day period shall be treated as one event of default to the extent that
one or more Payment Notices are issued in connection therewith, and (iii) no
more than two Payment Blocks shall be permitted within any period of 12
consecutive months. Any payment made in contravention of the provisions of this
paragraph shall be returned to the Company.
(d) In the event that, notwithstanding the provisions of
paragraph (a) or (b), the Trustee or the Holder of any Security shall have
received any payment on account of the principal of or premium, if any, or
interest on the Securities in contravention of paragraph (a) or (b) or after the
happening of a default in payment of any Senior Indebtedness of the Company or
any acceleration of the maturity of any Senior Indebtedness of the Company then,
in either such case, except in the case of any such default that shall have been
cured or waived or shall have ceased to exist, such payment (subject to the
provisions of Sections 12.6 and 12.7) shall be held for the benefit of, and
shall be paid over and delivered to, the holders of such Senior Indebtedness of
the Company (pro rata as to each of such holders on the basis of the respective
amounts of Senior Indebtedness of the Company held by them) or their
representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness of the Company may have been issued, as
their respective interests may appear, for application to the payment of all
Senior Indebtedness of the Company remaining unpaid to the extent necessary to
pay all Senior Indebtedness of the Company in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness of the Company.
(e)(1) Upon the occurrence of an Event of Default under
Section 5.1(a) through (d) and (g), the Trustee or holders of 25% of
the outstanding principal amount of the Securities of any series must
give notice of such Event of Default and the intention to declare the
acceleration of principal of all the Securities of that series to the
Company and any holders of Senior Indebtedness which have theretofore
requested of the Trustee such notice, and no acceleration of the
Securities of any series shall be effective unless and until such Event
of Default is continuing on the 60th day after the date of delivery of
such notice. The Company may pay the Holders of the Securities of any
series any defaulted payment and all other amounts due following any
such acceleration of the maturity of the Securities if this Section
12.2(e) would not prohibit such payment to be made at that time.
(2) Nothing in this Article 12 shall prevent or delay the
Trustee or the Holders of the Securities from taking any action in
connection with the acceleration of the maturity of the Securities
pursuant to Section 5.2 upon the occurrence of an Event of Default
under either Section 5.1(e) or 5.1(f).
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(3) Except as provided in Section 12.2(e)(1), a failure
to make any payment with respect to the Securities as a result of the
rights of holders of Senior Indebtedness of the Company described in
paragraph (b) or (c) hereof will not have any effect on the right of
Holders of the Securities to accelerate the maturities thereof as a
result of such payment default. The Company shall give prompt written
notice to the Trustee of any default in the payment of principal of or
interest on any Senior Indebtedness of the Company, and in the event of
any such default, shall provide to the Trustee, in the form of an
Officers' Certificate, the names, addresses and respective amounts due
holders of such Senior Indebtedness or the name and address of the
trustee acting on their behalf, if any. The Trustee shall be entitled
to rely conclusively on such Officers' Certificate without independent
verification.
Section 12.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of the Company. Upon
the distribution of assets of the Company in any dissolution, winding up,
liquidation (total or partial) or similar proceeding relating to the Company
(whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payment in full of all Senior
Indebtedness (or to have such payment duly provided for in a manner
satisfactory to them) in cash or in a manner satisfactory to the
holders of Senior Indebtedness of the Company before the Holders of the
Securities are entitled to receive any payment on account of the
principal of, premium, if any, or interest on the Securities;
(b) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or readjusted, or
securities of the Company or any other company, trust or corporation
provided for by a plan of reorganization or readjustment, the payment
of which is junior or otherwise subordinate, at least to the extent
provided in this Article 12 with respect to the Securities, to the
payment of all securities issued in exchange therefor to the holders of
the Senior Indebtedness of the Company at the time outstanding), to
which the Holders of the Securities or the Trustee on behalf of the
Holders of the Securities would be entitled except for the provisions
of this Article 12, shall be paid by the liquidating trustee or agent
or other person making such payment or distribution directly to the
holders of the Senior Indebtedness of the Company or their
representatives or to the trustee under any indenture under which such
Senior Indebtedness may have been issued (pro rata as to each such
holder, representative or trustee on the basis of respective amounts of
unpaid Senior Indebtedness held or represented by each), to the extent
necessary to make payment in full of all Senior Indebtedness of the
Company remaining unpaid, after giving effect to any concurrent payment
or distribution or provision therefor to the holders of such Senior
Indebtedness; and
(c) in the event that notwithstanding the foregoing
provisions of this Section 12.3, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or
readjusted or securities of the Company or any other company, trust or
corporation provided for by a plan of reorganization or readjustment,
the payment of which is junior or otherwise subordinate, at least to
the extent provided in this Article 12 with respect to the Securities,
to the payment of all Senior Indebtedness of the Company at the time
outstanding and to the payment of all securities issued in exchange
therefor to the holders of the Senior Indebtedness of the Company, as
the case may be, at the time outstanding), shall be received by the
Trustee or the Holders of the Securities on account of principal of,
premium, if any, or interest on the Securities before all Senior
Indebtedness of the Company is paid in full in cash or in a manner
satisfactory to the holders of such Senior Indebtedness in accordance
with its terms, or effective provision made for its payment, such
payment or distribution (subject to the provisions of Sections 12.6 and
12.7) shall be received and held for the benefit of and paid over to
the holders of the Senior Indebtedness of the Company remaining unpaid
or unprovided for or their representative, or to the trustee under any
indenture under which such Senior Indebtedness of the Company may have
been issued (pro rata as provided in paragraph (b) above), for
application to the payment of such Senior Indebtedness of the Company
to the extent necessary to pay all such Senior Indebtedness of the
Company in full in cash or in a manner satisfactory to the holders of
Senior
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Indebtedness of the Company in accordance with its terms, after giving
effect to any concurrent payment or distribution or provision therefor
to the holders of such Senior Indebtedness of the Company.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or any
assignment for the benefit of the Company's creditors tending toward the
liquidation of the business and assets of the Company.
Section 12.4 Holders to Be Subrogated to Rights of Holders of Senior
Indebtedness. Upon the payment in full of all Senior Indebtedness of the Company
in cash or in a manner satisfactory to the holders of such Senior Indebtedness,
the Holders of the Securities shall be subrogated equally and ratably to the
rights of the holders of Senior Indebtedness of the Company to receive payments
or distributions of assets of the Company applicable to the Senior Indebtedness
of the Company until all amounts owing on the Securities shall be paid in full,
and for the purpose of such subrogation no payments or distributions to the
holders of Senior Indebtedness of the Company by or on behalf of the Company or
by or on behalf of Holders of the Securities by virtue of this Article 12 that
otherwise would have been made to the Holders of the Securities shall, as
between the Company and the Holders of the Securities, be deemed to be payment
by the Company to or on account of Senior Indebtedness of the Company, it being
understood that the provisions of this Article 12 are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of Senior Indebtedness of the Company, on the other
hand.
Section 12.5 Obligation of the Company Unconditional. Nothing contained
in this Article 12 or elsewhere in this Indenture or in any Security is intended
to or shall impair, as between the Company and the Holders of the Securities,
the obligations of the Company that are absolute and unconditional, to pay to
the Holders of the Securities the principal of, premium, if any, and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness of the Company nor, except as expressly provided in this
Article 12, shall anything herein or in the Securities prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article 12 of the holders of Senior Indebtedness of the Company, in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any distribution of assets of the Company
referred to in this Article 12, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities endorsed thereon shall be
entitled to rely upon any order or decree by any court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or the Holders of the Securities
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness of the Company and other
indebtedness of the Company, the amounts thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 12.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in any Security is intended to or shall affect the obligations of the Company to
make, or prevent the Company from making, at any time except during the pendency
of any dissolution, winding up, liquidation (total or partial) or similar
proceeding, and except during the continuance of any event specified in Section
12.2 (not cured or waived), payments at any time of the principal of, or
premium, if any, or interest on the Securities.
Section 12.6 Knowledge of Trustee. Notwithstanding any provision of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
moneys to or by the Trustee until three Business Days after a Responsible
Officer of the Trustee on behalf of the Trustee shall have received at the
Corporate Trust Office of the Trustee written notice thereof from the Company,
any Holder, or the holder or representative of any class of Senior Indebtedness
of the Company identifying the specific sections of this Indenture involved and
describing in detail the facts that would obligate the Trustee to withhold
payments to Holders of Securities, and, prior to such time, the Trustee, subject
to the provisions of Section 6.1, shall be entitled in all respects conclusively
to assume that no such facts exist. The Trustee shall be entitled to rely on the
delivery to it of a written notice by an individual representing himself to be a
holder of Senior
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Indebtedness of the Company (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of any such Senior Indebtedness or a
trustee on behalf of any such holder.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 12, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to amount of Senior
Indebtedness of the Company held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 12, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 12.7 Application by Trustee of Moneys Deposited With It. If two
Business Days prior to the date on which by the terms of this Indenture any
moneys deposited with the Trustee or any Paying Agent (other than the Company or
a Subsidiary) may become payable for any purpose (including, without limitation,
the payment of the principal of, premium, if any, or interest on any Security),
the Trustee shall not have received with respect to such moneys the notice
provided for in Section 12.6, then the Trustee shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it on or after such date. This Section 12.7 shall be
construed solely for the benefit of the Trustee and the Paying Agent and shall
not otherwise affect the rights of holders of such Senior Indebtedness.
Section 12.8 Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness of the Company to enforce subordination as
provided herein shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to act
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
Section 12.9 Holders Authorize Trustee to Effectuate Subordination of
Securities. Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate in the discretion of the Trustee to effectuate the
subordination provided in this Article 12 and appoints the Trustee his
attorney-in-fact for such purpose, including, without limitation, in the event
of any dissolution, winding up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or otherwise) tending toward liquidation
of the business and assets of the Company, the timely filing of a claim for the
unpaid balance of his Securities in the form required in said proceedings. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceedings before the expiration of the time to file such claim or
claims, then the holders of Senior Indebtedness of the Company are hereby
authorized to have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities.
Section 12.10 Right of Trustee to Hold Senior Indebtedness. The Trustee
shall be entitled to all of the rights set forth in this Article 12 in respect
of any Senior Indebtedness of the Company at any time held by it to the same
extent as any other holder of such Senior Indebtedness of the Company, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder. With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article 12, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company, and the Trustee shall not be
liable to any holder of Senior Indebtedness of the Company if it shall
mistakenly pay over or deliver to Holders of Securities, the Company or any
other Person moneys or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article 12 or otherwise.
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Section 12.11 Article 12 Not to Prevent Events of Default. The failure
to make a payment on account of principal or interest by reason of any provision
in this Article 12 shall not be construed as preventing the occurrence of an
Event of Default under Section 5.1.
Section 12.12 Paying Agents Other Than the Trustee. In case at any time
any Paying Agent (including, without limitation, the Company or any Subsidiary)
other than the Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article 12 shall in such
case (unless the context shall otherwise require) be construed as extending to
and including such Paying Agent (except the Company and its subsidiaries in the
case of Sections 12.6 and 12.7) within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article 12 in addition to or
in place of the Trustee.
Section 12.13 Trustee's Compensation Not Prejudiced. Nothing in this
Article 12 shall apply to amounts due to the Trustee pursuant to Section 6.9.
Section 12.14 Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money held in trust under
Article 4 by the Trustee for the payment of principal of, premium, if any, and
interest on the Securities shall not be subordinated to the prior payment of any
Senior Indebtedness of the Company or subject to the restrictions set forth in
this Article 12, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Indebtedness of the Company or any
other creditor of the Company.]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
XXXXXXX & XXXXX, INC.
By: _____________________________________
Name: _______________________________
Title: ______________________________
_________________________________________
__________________________, TRUSTEE
By: _____________________________________
Name: _______________________________
Title: ______________________________
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