Exhibit 4.1
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OLD NATIONAL BANCORP
AND
BANK ONE, NA, TRUSTEE
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Indenture
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Dated as of July , 1997
(Debt Securities)
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . 3
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
mandatory sinking fund payment . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
New York Facility . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 6
optional sinking fund payment . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 8
Security or Securities . . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . . . . . . . . 8
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . . . . 9
United States Alien . . . . . . . . . . . . . . . . . . . . . 9
U.S. Depository or Depository . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . 14
SECTION 106. Notice to Holders of Securities; Waiver . . . . 14
SECTION 107. Language of Notices, etc. . . . . . . . . . . 15
SECTION 108. Conflict with Trust Indenture Act . . . . . . . 15
SECTION 109. Effect of Headings and Table of Contents . . . 15
SECTION 110. Successors and Assigns . . . . . . . . . . . . 15
SECTION 111. Separability and Saving Clause . . . . . . . . 15
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . 16
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . 16
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SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . 16
SECTION 115. Certificate of Firm of Independent Public
Accountants Conclusive . . . . . . . . . . 16
SECTION 116. No Recourse Against Others . . . . . . . . . . 17
ARTICLE TWO
SECURITY FORMS
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SECTION 201. Forms of Securities . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES
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SECTION 301. Amount Unlimited; Issuable in Series . . . . . 18
SECTION 302. Currency; Denominations . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 28
SECTION 307. Payment of Interest and Certain Additional
Amounts; Rights Preserved . . . . . . . . . 29
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 31
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . 32
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture . . . . 32
SECTION 402. Application of Trust Money . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
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SECTION 501. Events of Default . . . . . . . . . . . . . . . 35
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . 37
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 38
SECTION 504. Trustee May File Proofs of Claim . . . . . . . 39
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons . . . . . . . . . . 40
SECTION 506. Application of Money Collected . . . . . . . . 40
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 41
SECTION 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts . . . . . . . . . . . . 41
SECTION 509. Restoration of Rights and Remedies . . . . . . 42
SECTION 510. Rights and Remedies Cumulative . . . . . . . . 42
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . 42
SECTION 512. Control by Holders of Securities . . . . . . . 42
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 43
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 43
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . 44
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ARTICLE SIX
THE TRUSTEE
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SECTION 601. Certain Duties and Responsibilities . . . . . . 44
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . 45
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . 46
SECTION 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . 47
SECTION 605. May Hold Securities . . . . . . . . . . . . . . 47
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement . . . . . . . . 48
SECTION 608. Disqualifications; Conflicting Interests . . . 48
SECTION 609. Corporate Trustee Required, Eligibility . . . . 48
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . 49
SECTION 611. Acceptance of Appointment by Successor . . . . 50
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . 52
SECTION 613. Appointment of Authenticating Agent . . . . . . 52
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders of Registered Securities . . . . 54
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . 55
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . 55
SECTION 704. Reports by Company . . . . . . . . . . . . . . 55
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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SECTION 801. Consolidations and Mergers of Company and Sales
and Conveyances Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . 56
SECTION 802. Rights and Duties of Successor Corporation . . 57
SECTION 803. Officers' Certificate and Opinion of Counsel . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
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SECTION 901. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . 58
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . 61
SECTION 903. Execution of Supplemental Indentures . . . . . 63
SECTION 904. Effect of Supplemental Indentures . . . . . . . 63
SECTION 905. Conformity with Trust Indenture Act . . . . . . 63
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 63
ARTICLE TEN
COVENANTS
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SECTION 1001. Payment of Principal and any Premium, Interest
and Additional Amounts . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 64
SECTION 1003. Money for Securities Payments to be Held in
Trust . . . . . . . . . . . . . . . . . . . 65
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . 66
SECTION 1005. Statement as to Compliance; Notice of Certain
Defaults . . . . . . . . . . . . . . . . . 67
SECTION 1006. Corporate Existence . . . . . . . . . . . . . . 67
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SECTION 1007. Limitation on Liens . . . . . . . . . . . . . . 68
SECTION 1008. Limitation on Sale of Stock . . . . . . . . . . 68
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . 69
SECTION 1010. Defeasance of Certain Obligations . . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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SECTION 1101. Applicability of Article . . . . . . . . . . . 71
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 71
SECTION 1103. Selection by Trustee of Securities to be
Redeemed . . . . . . . . . . . . . . . . . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . 72
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date . . . . . 73
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
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SECTION 1201. Applicability of Article . . . . . . . . . . . 75
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . 75
SECTION 1203. Redemption of Securities for Sinking Fund . . . 75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 1301. Applicability of Article . . . . . . . . . . . 76
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
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SECTION 1401. Purposes for Which Meetings May Be Called . . . 76
SECTION 1402. Call, Notice and Place of Meetings . . . . . . 77
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . 77
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . 77
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . 78
SECTION 1406. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . 79
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THIS INDENTURE, dated as of July 23, 1997 between OLD NATIONAL BANCORP,
an Indiana corporation (the "Company"), having its principal office at 000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 and Bank One, NA, a national banking
association, as Trustee (the "Trustee"), having its corporate trust office at
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company deems it desirable to issue from time to time debt
securities (the "Securities") evidencing its unsecured and unsubordinated
indebtedness and has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Securities, unlimited as to
principal amount, to bear such rates of interest, if any, to mature at such
time or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, all things necessary to make this Indenture a valid agreement,
in accordance with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act (as hereinafter defined) and the rules and regulations of the
Commission (as hereinafter defined) promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be governed
by such provisions.
NOW, THEREFORE:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, the Company and
the Trustee mutually covenant and agree, for the equal and proportionate
benefit of all Holders from time to time of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided in or pursuant to this Indenture or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(e) the term "day," unless designated as a "Business Day," means a
calendar day.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts that are required
by the Securities of a particular series or by or pursuant to a
supplemental indenture, Board Resolution or other instrument authorizing
such series of Securities, under the circumstances specified therein, to
be paid by the Company in respect of certain taxes, duties, assessments
or other governmental charges imposed on certain Holders and which are
owing to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 613 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different Authorized Newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
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"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of one or more resolutions 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, 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 each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in that Place of Payment
or such other location are authorized or obligated by law or executive
order to close except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by an independent public accountant or a firm of
independent public accountants who may be the independent public
accountants regularly retained by the Company or who may be other
independent public accountants. Such accountant or firm shall be
entitled to rely upon an Opinion of Counsel as to the interpretation of
any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or a written order signed in the name of the Company by the
Chairman, the President a Senior Vice President, the Controller, the
Treasurer or the Secretary of the Company, delivered to the Trustee.
"Consolidated Net Worth" means consolidated assets minus
consolidated liabilities determined in accordance with generally accepted
accounting principles.
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"Corporate Trust Office" means the office of the Trustee in the City
of Columbus, Ohio at which, at any particular time, its corporate trust
business shall be principally administered, which office on the date of
execution of this Indenture is located at Bank One, NA, 000 Xxxx Xxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxx 00000.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" has the meaning specified with respect to such term
under the definition of "U.S. Depository."
"Dollars" or "$" or any similar reference shall mean the coin or
currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts, except as may
otherwise be provided in the form of Securities of any particular series
pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations," with respect to any Security, means (i)
direct obligations of the Unites States of America, in each case where
the timely payment or payments thereunder are supported by the full faith
and credit of the United States of America or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a
full faith and credit obligation by the United States of America, and
which, in the case of (i) or (ii), are not callable or redeemable at the
option of the issuer or issuers thereof.
"Holder" means, in the case of a Registered Security, the Person in
whose name the Security is registered in the Security Register and, in
the case of a Bearer Security (or any temporary global Security), the
bearer thereof, and, in the case of any coupon, the bearer thereof.
"Indebtedness" means all obligations which in accordance with
generally accepted accounting principles would be classified upon a
balance sheet as liabilities, including without limitation by the
enumeration thereof, obligations arising through direct or indirect
guarantees (including agreements, contingent or otherwise, to purchase
Indebtedness or to purchase property or services for the primary purpose
of enabling the payment of Indebtedness or assuring the owner of
Indebtedness against loss) or through agreements, contingent or
otherwise, to supply or advance
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funds for the payment or purchase of Indebtedness of others; provided,
however, that in determining Indebtedness of any Person, there shall not
be included rental obligations under any lease of such Person, whether or
not such rental obligations would, under generally accepted accounting
principles, be required to be shown on the balance sheet of such Person
as a liability item.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of any particular series of
Securities established as contemplated by Section 301.
"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, and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant to
Section 1004, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance, except for any mortgage, pledge, lien or security interest
granted by the Company or any Subsidiary to any Federal Home Loan Bank.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
"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, notice of redemption,
notice of option to elect repayment or otherwise, and includes the
Redemption Date.
"New York Facility" means the facility of the Trustee located in The
City of New York at which Securities may be presented or surrendered for
payment or registration of transfer or exchange and where notices and
demands to or upon the Company in respect of Securities and this
Indenture may be served, either pursuant to Section 1002 or as so
specified pursuant to Section 301. The New York Facility
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of Bank One, NA, as of the date of execution of this Indenture is located
at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxx 0000, Xxx Xxxx, New York 10002.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Senior Vice President, and by the Treasurer or the
Secretary, of the Company which certificate complies with the
requirements, if applicable, of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is
(except as otherwise expressly provided in this Indenture) an employee of
or counsel for the Company, or other counsel acceptable to the Trustee,
which opinion complies with the requirements, if applicable, of Section
314(e) of the Trust Indenture Act.
"optional sinking fund payment" has the meaning specified in Section
1201.
"Original Issue Discount Security" means any Security issued
pursuant to this Indenture which provides for an amount less than the
principal amount thereof to be due and payable upon acceleration thereof
pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means, as
of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) any such Security, or portion thereof, for whose payment
or redemption money and/or Government Obligations in the necessary
amount has been theretofore deposited pursuant hereto 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 and
any coupons thereto appertaining, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(c) any such Security that has been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Security in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Security
is held by a bona fide purchaser in whose hands such Security is a
valid and binding obligation of the Company;
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provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of
Securities, (i) the principal amount of an Original Issue Discount
Security that shall be counted in making such determination and that
shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that would be due and payable pursuant to
the terms of such Original Issue Discount Security as of the date of such
determination upon acceleration thereof pursuant to Section 502, (ii) the
principal amount of an Indexed Security that shall be counted in making
such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the principal face amount of such Indexed
Security at original issuance, and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon any such determination as
to the presence of a quorum, only Securities which 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 coupons
appertaining thereto or any Affiliate of the Company or such other
obligor.
"Paying Agent" means the Company or any Person authorized by the
Company to pay the principal of and any premium or interest on, or any
Additional Amounts with respect to, any Security or any coupon
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of
Section 1002, the principal of, or any premium or interest on, or any
Additional Amounts with respect to, the Securities of that series are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated,
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destroyed, lost or stolen coupon appertains shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security or the
Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date," when used with respect to any Security or portion
thereof 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 or
portion thereof to be redeemed, means the price at which it is to be
redeemed as determined by or pursuant to this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date,
if any, specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer corporate trust
matters.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as
Trustee under this Indenture, "Securities," with respect to any such
Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means, as of any date of determination
hereunder (the "Determination Date"), any Subsidiary in existence on the
date of execution of this Indenture or established or acquired after the
date of execution of this Indenture in respect of which the total assets,
as shown on such Subsidiary's balance sheet at the end of a fiscal
quarter immediately preceding the Determination Date, prepared in
accordance with generally accepted accounting principles, shall equal or
exceed 25% of the total assets of the Company as shown on the Company's
consolidated balance sheet at the end of such fiscal quarter, prepared in
accordance with generally accepted accounting principles.
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"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or any premium or interest thereon or
any Additional Amounts with respect thereto, means the fixed date on
which the principal of such Security or such installment of principal or
premium or interest is or such Additional Amounts are due and payable,
determined as contemplated by Section 301.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the total voting power
of shares of stock or other equity interests having general voting power
under ordinary circumstances (without regard to the occurrence of any
contingency) and entitled to vote in the election of directors, managers
or trustees of such corporation. "Wholly-owned," when used with reference
to a Subsidiary, means a Subsidiary of which all of the outstanding
capital stock (except directors' qualifying shares) is owned by the
Company and/or one or more wholly-owned Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Trust Indenture Act or
provision, as the case may be, as amended or replaced from time to time
or as supplemented from time to time by rules or regulations adopted by
the Commission under or in furtherance of the purposes of such Trust
Indenture Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"United States," except as otherwise provided in or pursuant to this
Indenture, means the United States of America (including the States
thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant
to this Indenture, means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust or a foreign
partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign
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corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository or Depository by the Company in
or pursuant to this Indenture, which Person must be, to the extent
required by applicable law or regulation, a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and, if so
provided with respect to any Security, any successor to such Person. If
at any time there is more than one such Person, "U.S. Depository" or
"Depository" shall mean, with respect to any Securities, the qualifying
entity which has been appointed with respect to such Securities.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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, provided that in the
case of any such application or request as to which the furnishing of such
documents or either of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture 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.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of counsel or
Opinion of Counsel or representations by counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to matters upon which his certificate
or opinion is based are erroneous. Any such certificate of counsel or Opinion
of Counsel or representations by counsel may be based, insofar as it relates
to factual matters, upon a certificate, opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If, but only if,
Securities of a series are issuable as Bearer Securities in whole or in
part, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fourteen or a combination of such instruments and
any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of
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any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any meeting
of Holders of Securities shall be proved in the manner provided in
Section 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including
a Depository that is a Holder of a global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be made, given or taken by
Holders, and a Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any
such global Security through such Depository's standing instructions and
customary practices.
The Trustee may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any global Security
held by a Depository entitled under the procedures of such Depository to
make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or
other action provided in or pursuant to this Indenture to be made, given
or taken by Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver
or other action shall be valid or effective if made, given or taken more
than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities and the principal amount
and serial numbers of Registered Securities held by any Person, and the
date of holding the same, shall be proved by the Security Register.
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(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary reasonably acceptable to the Company, wherever situated, if
such certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Company and the Trustee to
be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another certificate
or affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (ii) such Bearer Security is produced to the
Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may also be proved in any other manner that the Company
and the Trustee deem sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, 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 action may be given before or after such record date, but
only the Holders of Registered Securities of record at the close of
business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities on such
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months
after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action 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, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
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SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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, by United States first-class mail, postage
prepaid, to the Company addressed to the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to the provisions
of this Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed by United States
first-class mail, postage prepaid, to each Holder of a Registered
Security affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities, if any, as may be specified in
such Securities and, if the Securities of such series are then listed on
any stock exchange outside the United States, in an Authorized Newspaper
in such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second such
publication to be not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
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Registered Securities by mail then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities 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 107. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be
in an official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required to be a part of and govern this
Indenture, such required provision shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the interpretation or construction
hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its Successors and assigns, whether so expressed or not, and all rights of the
Company hereunder shall inure to the benefit of such successors and assigns.
SECTION 111. Separability and Saving Clauses.
(a) In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, either wholly or
partially, the validity,
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legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
(b) No provision of this Indenture or of any Security or coupon
shall require the payment or permit the collection of interest or any
Additional Amounts in excess of the maximum which is not prohibited by
law. If any such excess interest is provided for herein or in any
Security or coupon, which shall be adjudicated to be so provided for,
then the Company shall not be obligated to pay such interest or
Additional Amounts in excess of the maximum not prohibited by law until
such time, if any, as it shall become legal to do so.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in any Security or coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their respective
successors and assigns hereunder, and the Holders of Securities or coupons,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons, including the validity
thereof, shall be governed by and construed in accordance with the laws of the
State of Indiana.
SECTION 114. Legal Holidays.
In any case where any Maturity or Stated Maturity of any Security, or any
installment of principal thereof or any premium or interest thereon or any
Additional Amounts with respect thereto, shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or the Securities or coupons other than a provision in the Securities or
coupons of any series which specifically states that such provision shall
apply in lieu of this Section) payment of principal or any premium or interest
or Additional Amounts with respect to such Security 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 at the
Maturity or Stated Maturity, and no interest shall accrue on the amount so
payable for the period from and after such Maturity or Stated Maturity, as the
case may be, to such next succeeding Business Day.
SECTION 115. Certificate of Firm of Independent Public Accountants
Conclusive.
A Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence of the Consolidated Net Worth of the Company as of the
date of any determination. Notwithstanding the foregoing, the Trustee shall
be under no duty to require that it be furnished with a Certificate of a Firm
of Independent Public Accountants either annually or at any other periodic
interval or in any event unless evidence of the Consolidated Net Worth of the
Company shall be required.
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SECTION 116. No Recourse Against Others.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any supplemental Indenture, or in any Security or
coupon, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
director, officer or employee, as such, of the Company, or of any successor or
predecessor of the Company, either directly or through the Company or any
successor or predecessor, under any law, statute, rule, regulation,
constitutional provision, order or decree or by the enforcement of any
assessment or by any legal or equitable action or proceeding or otherwise. By
accepting a Security, each Holder shall waive and release all such liability
of any such incorporator, shareholder, director, officer or employee. Such
waiver and release shall be part of the consideration for the issuance of the
Securities.
ARTICLE TWO
SECURITY FORMS
--------------
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, and related coupons shall be in such form
or forms (including permanent or temporary global form) as shall be
established in one or more indentures supplemental hereto or by or pursuant to
a Board Resolution in accordance with Section 301, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange or as
may consistently herewith be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities or coupons.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons.
The definitive Securities and coupons, if any, shall be typewritten,
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 of the Company executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
------------------------------
as Trustee
By:
------------------------------
Authorized Signer
SECTION 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be issuable in global form, any such Security may provide that it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted
by the terms thereof) from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may
from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. Subject
to the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304
has been or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
--------------
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. The terms of the
Securities in addition to or in lieu of those set forth in this Indenture
shall be determined or established in any one or more of the following ways:
(1) in one or more indentures supplemental hereto; (2) in one or more Board
Resolutions; or (3) in a manner specified in or authorized by one or more
Board Resolutions (in which case such Board Resolutions shall be included in
or attached to an Officers' Certificate setting forth such terms or the manner
in which such terms are to be determined or established). The terms to be so
determined or established shall include:
(a) the title of the Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 906 or
1107);
(c) whether such Securities are to be issuable as Registered
Securities, Bearer Securities (with or without coupons or both) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities of the series, the terms, if any, upon which Bearer Securities
of the series may be exchanged for Registered Securities of the series
and vice versa, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, (i) when any of such Securities are to be issued in
global form, (ii) whether beneficial owners of interests in any such
permanent global Security may exchange such interests for certificated
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Xxxxxxx 000, (xxx) the
name of the U.S. Depository or the Depository, as the case may be, with
respect to any global Security, and (iv) the form of any legend or
legends to be borne by any such global Security in addition to or in lieu
of the legend referred to in Section 303;
(d) the date as of which any Bearer Securities of the series and
any global 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;
(e) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all or any portion of the
Outstanding Bearer Securities of the series) payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of such
temporary Bearer Security for definitive Securities of the series shall
be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the
terms and conditions
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(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(f) the date or dates on which the principal of such Securities is
payable, or the manner in which such date or dates shall be determined;
(g) the rate or rates at which such Securities shall bear interest,
if any, or the manner in which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the manner in
which such date or dates shall be determined, the Interest Payment Dates
on which any such interest shall be payable or the manner in which such
Interest Payment Dates shall be determined, and the Regular Record Date,
if any, for any interest payable on any such Registered Securities on any
such Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be payable
and, if so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis upon
which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(h) each Place of Payment of such Securities, if any, other than or
in addition to the City of Columbus, Ohio and the Borough of Manhattan,
The City of New York, where, subject to Section 1002, the principal of
and any premium and interest on or Additional Amounts, if any, payable in
respect of, such Securities shall be payable, and the place or places
where any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and any notices and demands to or upon the Company in respect of
such Securities and this Indenture may be served;
(i) whether such Securities are to be redeemable at the option of
the Company and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the
option of the Company;
(j) the obligation, if any, of the Company to redeem such
Securities pursuant to any sinking fund or analogous provisions or to
repay such Securities at the option of a Holder thereof or upon the
occurrence of one or more specified events and, if so, the date or dates
on which, the period or periods within which (or the event or events upon
which), the price or prices at which and the other terms and conditions
upon which such Securities shall be redeemed or repaid, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or repaid;
(k) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple
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thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the
denomination of $5,000;
(1) if other than the full principal amount thereof, the portion of
the principal amount of any such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the manner in which such portion is to be determined;
(m) whether the amount of payments of principal of and any premium
or interest on, and any Additional Amounts in respect of, such Securities
may be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more currencies, commodities, equity indices or
other indices) and, if so, the terms and conditions upon which and the
manner in which such amounts shall be determined and paid or payable;
(n) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Securities,
whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein, any change in the
right of the Trustee or Holders to declare the principal of such
Securities due and payable, and any additions to the definitions
currently set forth in this Indenture;
(o) the form or forms of such Securities, if any, and, if any
Securities of such series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such
certificates, documents or conditions;
(p) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent and Authenticating Agent with respect to such Securities; and
(q) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and any coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
coin or currency of payments due thereunder, denomination, the rate or rates
of interest, if any, or the method of determining the rate of interest, if
any, the date or dates from which interest, if any, shall accrue, and Stated
Maturity and except as may otherwise be provided in the terms of such
Securities determined or established as provided above. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened for issuances of additional Securities of such
series.
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If any of the terms of the Securities or coupons of any series are
established by action that is specified in or authorized by a Board Resolution
and such action is to be taken at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series of Securities or the manner
in which such terms are to be determined or established, then a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series or the manner in which such terms are to be determined or established.
SECTION 302. Currency; Denominations.
The principal of, any premium and interest on and any Additional Amounts
with respect to the Securities shall be payable in Dollars. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof, and any Bearer
Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or one of its Senior Vice Presidents, and attested by
its Treasurer or Secretary. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices on the date(s) such Securities were
issued.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupons appertaining thereto, executed by the Company to the Trustee
for authentication, together with the Board Resolution and Officers'
Certificate, supplemental indenture or other instrument with respect to such
Securities referred to in Sections 201 and 301 and a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If all the Securities of any series are not to
be issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. In authenticating Securities hereunder, and accepting the
additional responsibilities under this Indenture in relation to such
Securities and any coupons appertaining thereto, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon,
(a) an Opinion of Counsel stating substantially to the effect that,
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(1) the form and terms of such Securities and coupons, if any,
or the manner of determining such terms, have been established in
conformity with the provisions of this Indenture; and
(2) such Securities and coupons, 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 against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, or other laws
relating to or affecting the enforcement of creditors' rights and by
general equity principles; and
(b) an Officers' Certificate stating, to the best knowledge of each
signer of such certificate, that no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of
the Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel and Officers'
Certificate at the time of issuance of each such Security, but such opinion
and certificate shall be delivered at or before the time of issuance of the
first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depository for such
global Security or Securities or the nominee of such Depository, (iii) shall
be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction, and (iv) shall bear a legend substantially to the
following effect (or to such other effect as may be specified in the document
authorizing such series of Securities or as the Depository, the Trustee and
the Company may agree): "Unless and until it is exchanged in whole or in part
for Securities in certificated form, this Security may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository."
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Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially
in the form provided for in Section 202 or 613 executed by or on behalf of the
Trustee or an Authenticating Agent by the manual signature of one of its
authorized officers. Such an executed certificate of authentication upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized in or pursuant
to this Indenture, in bearer form with one or more coupons or without coupons,
and with such appropriate insertions, omissions, substitutions and other
variations as the officers of the Company executing such Securities may
determine, as evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company shall cause definitive Securities of
that series to be prepared without unreasonable delay. After the preparation
of such definitive Securities, the temporary Securities of such series shall
be exchangeable for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of such series
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like aggregate
principal amount of definitive Securities of authorized denominations of the
same series containing identical terms and provisions; provided, however, that
no definitive Bearer Security, except as provided pursuant to Section 301,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in or pursuant to this Indenture. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary global
Security, until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
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SECTION 305. Registration, Registration of Transfer and Exchange.
With respect to the Registered Securities, if any, of each series of
Securities, the Company shall cause to be kept at an office or agency of the
Company maintained pursuant to Section 1002 a register (each such register
being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Registered Securities of each series and
of transfers of the Registered Securities of each series. Such office or
agency shall be the "Security Registrar" for the Registered Securities, if
any, of each series of Securities. In the event that the Trustee shall not
be the Security Registrar with respect to a particular series of Securities,
it shall have the right to examine the Security Register for such series at
all reasonable times. Unless otherwise provided with respect to a series of
Securities in a supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities, Bank One, NA, is hereby appointed
Security Registrar for each series until a successor has been appointed by a
Board Resolution or an instrument executed on behalf of the Company by its
Chairman, President or one of its Senior Vice Presidents and delivered to the
Trustee.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding, and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series (except
a global Security representing all or a portion of such series) may be
exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities that the Holder
making the exchange is entitled to receive.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series
may be exchanged for Registered Securities or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination) of the
same series containing identical terms and provisions, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency of the Company
maintained for such series, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in
an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each
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of them and any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency for such series located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
If expressly provided in or pursuant to this Indenture with respect to
the Securities of any series, at the option of the Holder, Registered
Securities of such series may be exchanged for Bearer Securities upon such
terms and conditions as may be provided in or pursuant to this Indenture with
respect to such series.
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.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so
exchangeable, (iii) an Event of Default has occurred and is continuing with
respect to the Securities of the same series, or (iv) in the case of a global
Security representing Bearer Securities, upon the written request of a
beneficial owner of an interest in such global Security given to the
Depository. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for certificated Securities of such
series, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee certificated Securities in such form and denominations
as are required by or pursuant to this Indenture, and of the same series as,
containing identical terms as and in aggregate principal amount equal to the
principal amount of, such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such
global Security shall be surrendered from time to time by the U.S. Depository
(or
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such other Depository as shall be specified in the Company Order with respect
thereto) to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for certificated Securities as described
above, without charge, in accordance with instructions (which instructions
shall be in writing but need not be contained in or accompanied by an
Officers' Certificate or be accompanied by an Opinion of Counsel) given by
the Company to the Trustee and such U.S. Depository or other Depository, as
the case may be. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of certificated Securities of the same series
of authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both
as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the global Security shall be issuable only
in the form in which the Securities are issuable, as provided in or pursuant
to this Indenture) shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities for redemption of the same series and containing
identical terms and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such global Security shall be
returned by the Trustee to the U.S. Depository or such other Depository
referred to above, as the case may be, in accordance with the instructions of
the Company referred to above, with an endorsement thereon to reflect the
decrease in the aggregate amount of Outstanding Securities represented
thereby. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the office or agency for such
Security where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at such office or agency
on the next Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such office or agency on the
related proposed date for payment of interest or Defaulted Interest, as the
case may be, interest shall not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but shall be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such global Security shall be payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitling the Holders thereof to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar therefor 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
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities
of like tenor and the same series under Section 1103 and ending at the close
of business (A) if Securities of the series are issuable only as Registered
Securities, on the day of the mailing of the relevant notice of redemption and
(B) if Securities of the series are issuable as Bearer Securities, on the day
of the first publication of the relevant notice of redemption or, if
Securities of the series are also issuable as Registered Securities and there
is no publication, the mailing of the relevant notice of redemption, (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, (iii) to exchange
any Bearer Security so selected for redemption, except, to the extent provided
with respect to such Bearer Security, that such Bearer Security may be
exchanged for a Registered Security of like tenor and the same series,
provided that such Registered Security shall be immediately surrendered for
redemption with written instruction for payment consistent with the provisions
of this Indenture, or (iv) to issue, register the transfer of or exchange any
Security that, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
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In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or
coupon; provided, however, that payment of principal of and any premium or
interest on or any Additional Amounts with respect to any Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency for such Securities located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest and Certain Additional Amounts;
Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on and any Additional
Amounts with respect to any Registered 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 and any interest on any Bearer Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid upon surrender of the coupon appertaining thereto in respect of the
interest due on such Interest Payment Date. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an office or
agency for such Security on any Regular Record Date therefor and before the
opening of business at such office or agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest shall not be
payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on and any
Additional Amounts with respect to any
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Registered Security of any series which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for such Registered
Security (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder thereof 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 subsection (a) or (b)
below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities affected (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when so deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
subsection provided. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
United States first- class postage prepaid, to each Holder of such
Registered Securities (or their respective Predecessor Securities) at the
address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in The City of New York, but such publication
shall not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (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 subsection (b). In case a
Bearer Security of any series is surrendered at the office or agency for
such Security in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest shall not be payable on
such proposed date of payment in respect of the Registered Security
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issued in exchange for such Bearer Security, but shall be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(b) The Company may make payment of any Defaulted Interest on such
Registered Securities 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 subsection (b), such manner of payment shall be deemed
practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register
or by transfer to an account maintained by the payee with a bank located in
the United States or by any other means permitted in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in
the Security Register as the owner and Holder of such Registered Security for
the purpose of receiving payment of the principal of and any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Registered Security and for all other purposes whatsoever,
whether or not any payment with respect to such Registered Security shall be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or coupon
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
No owner of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner and
Holder of such global Security for all purposes whatsoever. None of the
Company, the
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Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons, as well as
Securities and coupons surrendered directly to the Trustee for any such
purpose, shall be promptly canceled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by or pursuant to this Indenture. All canceled Securities and
coupons held by the Trustee shall be disposed of in accordance with its
customary practices, subject to applicable law.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
--------------------------
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as provided in the last paragraph of this Section 401), and the
Trustee, on demand of and at the expense of the Company, shall execute such
instruments as may be requested by the Company acknowledging satisfaction and
discharge of this Indenture with respect to such series, when
(a) either
(1) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities of such series
surrendered for exchange for Registered Securities and maturing
after
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such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities of such series and coupons
which have been destroyed, lost or stolen and that have been
replaced or paid as provided in Xxxxxxx 000, (xxx) coupons
appertaining to Securities of such series called for redemption and
maturing after the relevant Redemption Date, whose surrender has
been waived as provided by Section 1106, and (iv) Securities of such
series and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(2) all such Securities of such series and, in the case of (i)
and (ii) below, any coupons appertaining thereto 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 the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 402(c)) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Securities of such series, (A) money in an amount, or (B) Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms, without
consideration of any reinvestment thereof, will provide not later
than the opening of business on the due dates of any payment of
principal and any premium, interest and Additional Amounts with
respect thereto money in an amount, or (C) a combination thereof,
sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest
on, and any Additional Amounts with respect to such Securities and
coupons, to the date of such deposit (in the case of Securities of
such series which have become due and
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payable) or to the Stated Maturity or Maturity thereof, as the case
may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee a Certificate of a
Firm of Independent Public Accountants certifying as to the sufficiency
of the amounts deposited pursuant to paragraph (2) of subsection (a) of
this Section for payment of the principal and any premium, interest and
Additional Amounts with respect to the Securities of such series on the
dates such payments are due, and 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 of Securities have been complied with.
If there are Securities of two or more series hereunder, and if a
different Trustee has been appointed with respect to one or more of such
series, then each Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture if requested to do
so only with respect to Securities of the series as to which it is Trustee and
if the other conditions thereto are met.
If subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Amounts in excess of those established as of the date
such discharge is effected become payable in respect of the series of
Securities discharged, in order to preserve the benefits of the discharge
established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 401,
within ten Business Days prior to the date the first payment in respect of any
portion of such excess Additional Amounts becomes due, such additional funds
as are necessary to satisfy the provisions of this Section 401 as if a
discharge were being effected as of the date of such subsequent deposit.
Failure to comply with the requirements of this paragraph shall result in the
termination of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations with respect to the right
of registration of transfer or exchange of Securities of such series provided
for herein, the obligations of the Company under the preceding paragraph, the
obligations of the Company to the Trustee under Section 607 and, if money
and/or Government Obligations shall have been irrevocably deposited with the
Trustee pursuant to paragraph (2) of subsection (a) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and/or Government Obligations deposited with the Trustee
pursuant to
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Section 401 or Section 1010 or pursuant to a supplemental indenture
entered into pursuant to Section 901(i), and all money received by the
Trustee in respect of any such Government Obligations, shall be held in
trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium, interest and Additional
Amounts for whose payment such money has or Government Obligations have
been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section
401 or Section 1010 or any such supplemental indenture; but such money
and Government Obligations need not be segregated from other funds of the
Trustee except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to Section 401 or Section 1010 or pursuant
to a supplemental indenture entered into pursuant to Section 901(i) or
the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any Government Obligations or money held by it
as provided in Section 401 or Section 1010 or in any supplemental
indenture entered into pursuant to Section 901(i) which, as expressed in
a Certificate of a Firm of Independent Public Accountants delivered to
the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such
obligations or money were deposited or received.
ARTICLE FIVE
REMEDIES
--------
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series (unless otherwise specified with respect to such series of
Securities in the supplemental indenture, Board Resolution or other instrument
authorizing such series of Securities), means any one of the following events
which has occurred and is continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest or Additional Amounts
payable in respect of any Security of that series or any coupon
appertaining thereto, when
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such interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of and any premium on
any Security of that series when it becomes due and payable at its
Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities 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 or
which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified United States 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 or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) an event of default, as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness for money borrowed of the Company
(including a default under this Indenture with respect to Securities of
any series other than that series), whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in a
principal amount in excess of $25,000,000 of Indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, and such acceleration shall not
have been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given, by
registered or certified United States 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 event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice
of Default" hereunder; or
(f) a court having jurisdiction in the premises shall have entered
a decree or order for relief in respect of the Company in an involuntary
proceeding under any applicable United States bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or of all or any
substantial part of its property, or ordering the winding-up or
liquidation of its
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affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(g) the Company shall have commenced a voluntary proceeding under
any applicable United States bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or shall have consented to
the entry of an order for relief in an involuntary case under any such
law, or shall have consented to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Company or of all or any substantial part
of its property, or shall have made an assignment for the benefit of
creditors; or
(h) the Company shall have taken any corporate action in
furtherance of any of the matters referred to in subsection (g) above; or
(i) any other Event of Default provided with respect to Securities
of such series in the supplemental indenture, Board Resolution or other
instrument authorizing such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, if an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing (other than an
Event of Default specified in Section 501(f) or (g)), then, and in every such
case, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities
as may be specified in the terms thereof of all of the Securities of that
series) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal amount (or such specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501
(f) or (g) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then, and in every such case, the principal amount
(or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series shall
become and be immediately due and payable without any declaration or other
action on the part of the Trustee or any Holder.
At any time after such acceleration with respect to Securities of any
series 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 Company and the Trustee, may rescind and
annul such acceleration and its consequences if:
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(a) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(1) all overdue installments of any interest on and Additional
Amounts payable in respect of all Securities of that series and any
coupons appertaining thereto,
(2) the principal of and any premium on any Securities of that
series which have become due otherwise than by reason of such
acceleration and interest thereon and Additional Amounts with
respect thereto at the rate or rates borne by or provided for in
such Securities,
(3) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which has become due solely by reason of such acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any installment of interest
or any Additional Amounts payable in respect of any Security or any
coupon appertaining thereto when such interest or Additional Amounts
shall have become due and payable and such default continues for a period
of 30 days, or
(b) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of all Securities which are of the same series as such
Security and any coupons appertaining thereto, the whole amount of money then
due and payable with respect to such Securities and coupons for
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principal, premium, interest and Additional Amounts and, to the extent that
payment of such interest shall be legally enforceable, interest upon any
overdue principal (and premium, if any) and upon any overdue installments of
interest and Additional Amounts, at the rate or rates borne by or provided for
in such series of Securities, and, in addition thereto, such further amount of
money 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 the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and coupons, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities and any coupons appertaining thereto or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by acceleration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of any series, of
principal, premium, interest and Additional Amounts owing and unpaid in
respect of the Securities and any coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding relative to the Company upon
the Outstanding Securities, its creditors, or its property, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities and coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities and coupons, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, any
premium, interest or Additional Amounts, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal and any premium, interest and
Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series or any
related coupons shall have any right to institute any action or 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) such 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 not less than 25% in aggregate principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such action or
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) any interest on, and any Additional Amounts in respect
of, such Security, or payment of such coupon, as the case may be, on the
respective Stated Maturity or Maturities thereof expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date or, in the case
of repayment at the option of such Holder, on the date such repayment is due)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon 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 the Company, the Trustee and the Holders of Securities or coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and such Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction;
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(c) such direction is not unduly prejudicial to the rights of other
Holders of Securities of such series not joining in such action; and
(d) subject to the provisions of Sections 601 and 603, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the
Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(a) in the payment of the principal of or any premium or interest
on, or Additional Amounts in respect of, any Security of such series; or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant (other than the Company and the Trustee) in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit instituted
by any Holder of a Security or coupon for the enforcement of the payment of
the principal of or any premium or interest on, or Additional Amounts in
respect of, any Security, or the payment of any coupon, on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case
of redemption, on or after the Redemption Date or, in the case of repayment at
the option of a Holder, on or after the date such repayment is due) or
interest on any overdue principal of any Security.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
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SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions 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, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
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(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in aggregate 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; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(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 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or any premium or interest on, or
Additional Amounts in respect of any Security of such series or in the payment
of any sinking or purchase fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of Securities and coupons of such series; and provided, further, that
in the case of any default of the character specified in Section 501(d) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence
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thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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 303 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 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 or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may reasonably see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
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entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event of
Default (other than a default in any payment with respect to a Security
due on a fixed date and with respect to which the Trustee is a Paying
Agent) unless either (i) a Responsible Officer of the Trustee assigned to
its corporate trust department shall have actual knowledge thereof or
(ii) the Trustee shall have received written notice thereof in accordance
with Section 105 from the Company or any Holder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificate of authentication) and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons and, subject to the
provisions of the Trust Indenture Act, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, Authenticating Agent or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent any
such expense, disbursement or advance may be attributable to the
Trustee's gross negligence or willful misconduct; and
(c) to indemnify each of the Trustee and its agents for, and to
hold each of them harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to the Trustee's or its agents' bad faith,
negligence or willful misconduct.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or any premium or interest on, or
Additional Amounts in respect of, particular Securities or any coupons
appertaining thereto. "Trustee" for purposes of this Section 607 includes any
predecessor Trustee, but negligence or bad faith of any Trustee shall not be
attributed to any other Trustee.
SECTION 608. Disqualifications; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, within the
meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation or other person permitted by the Trust Indenture Act to act as
Trustee under an indenture qualified under the Trust Indenture Act and that
has a combined capital and surplus of at least $50,000,000. If at any time
the
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Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove such Trustee with respect to all Securities as to which it is
Trustee or (ii) subject to Section 514, any Holder of a Security who has been
a bona fide Holder of a Security of any series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of such Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 611, any Holder of
a Security who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice to the Holders of Securities of a
particular series of each resignation and each removal of the Trustee
with respect to the Securities of such series and each appointment of a
successor Trustee with respect to the Securities of such series in the
manner provided in Section 106. Each such 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 and New York Facility.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on 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 hereunder of the retiring
Trustee, and shall duly assign, transfer and deliver to such
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successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees as co- trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be
responsible for any notice given to, or received by, or any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture other than as hereinafter
expressly set forth, and each such successor Trustee without any other
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in subsection (a) or (b) of this Section, as the case
may be.
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(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided such corporation shall be otherwise
qualified and eligible under this Article. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to
the Company, with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. 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
subject to the approval of the Company and 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, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to 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 such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
of resignation to the Trustee and to the Company. The Trustee 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 may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (i)
mail written notice of such appointment by United States first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as their
names and addresses appear in the Security Register, and (ii) if Securities of
the series are issued as Bearer Securities, publish notice of such appointment
at least once in an Authorized Newspaper in the place where such successor
Authenticating Agent has its principal office if such office is located
outside the United States. 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.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
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
alternative certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
-----------------------------------
as Trustee
By:
-----------------------------------
as Authenticating Agent
By:
-----------------------------------
Authorized Signer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
by the Company, shall appoint in accordance with this Section 613, and on
terms acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
of Registered Securities.
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than fifteen days after the Regular
Record Date for a semi-annual Interest Payment Date for each series of
Securities, or, if there is no semi-annual Interest Payment Date for a
series of Securities, then not later than May 15 and November 15 in each
year, commencing on the first May 15 or November 15, as the case may be,
after the first issuance of such Securities hereunder, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities of such series as of a date not more
than 15 days prior to the date of delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
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provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished for Securities for which the
Trustee acts as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit a brief report dated as of such May 15 with
respect to any of the events specified in such Section 313(a) which may
have occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Section 313(c) and filed in the
manner and with the Persons required by Section 313(d) of the Trust
Indenture Act.
SECTION 704. Reports by Company.
(a) The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities
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Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in 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 (i) and (ii) of this
Section 704(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) The Company shall notify the Trustee when and as the Securities
of any series become admitted to trading on any national securities
exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 801. Consolidations and Mergers of Company and Sales and
Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, merge with or into, or sell or convey
all or substantially all of its assets to, any other corporation, provided
that (a) (i) in the case of a merger, the Company is the surviving entity in
such merger, or (ii) in the case of a merger in which the Company is not the
surviving entity or in the case of a consolidation or a sale or conveyance of
assets, the corporation into which the Company is merged or the corporation
which is formed by such consolidation or which acquires by sale or conveyance
all or substantially all of the assets of the Company shall be a corporation
organized and existing under the laws of the United States of
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America or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal of and
any premium and interest on, and any Additional Amounts payable pursuant
to Section 1004 in respect of, all the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants of this Indenture and the Securities to be performed or
observed by the Company by a supplemental indenture in form satisfactory
to the Trustee, executed and delivered to the Trustee by such
corporation and (b) the Company or such successor corporation as the
case may be, shall not, immediately after such merger or consolidation,
or such sale or conveyance, be in default in the performance or
observance of any such covenant.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a conveyance by way of lease, shall be
relieved of any further obligation under this Indenture and the Securities and
any coupons appertaining thereto. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities and coupons issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee, and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities and coupons which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any
Securities or coupons which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the
Securities and coupons so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities and coupons
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and coupons had been issued at the
date of the execution hereof.
In case of any such merger in which the Company is not the surviving
entity or any such consolidation, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities and
coupons thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, sale or conveyance, and any such
assumption by the successor corporation, complies with the provisions of this
Article.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(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 contained; or
(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; or
(c) to add any additional Events of Default with respect to all or
any series of Securities; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) or any interest on or Additional Amounts with respect to
Registered Securities or Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to modify the
provisions relating to global Securities or to permit the issuance of
Securities in uncertificated form, provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination not otherwise permitted under
this Section 901 shall (i) become effective only when there is no
Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision
or (ii) not apply to any Security then Outstanding; or
(f) to secure the Securities pursuant to the requirements of
Sections 801 or 1007, or otherwise; or
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(g) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(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 Section 611(b); or
(i) to provide that the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of
any series on the 91st day after the date of the deposit referred to in
paragraph (5) hereof, and that the provisions of this Indenture, as they
relate to such Outstanding Securities (except as to any right to receive
Additional Amounts, as provided in Section 1004), shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same), except as
to:
(1) the rights of holders of such Outstanding Securities to
receive, from the trust funds described in paragraph (5) hereof, (i)
payment of the principal of (and premium, if any) and any
installment of the principal of (and premium, if any) and/or
interest on the Outstanding Securities of that series on the Stated
Maturity or Maturity of such principal or installment of principal
and/or interest and (ii) any mandatory sinking fund payments or
analogous payments or any Additional Amounts applicable to
Securities of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of
such Securities,
(2) the Company's obligations with respect to such Securities
under Sections 305, 306, 402, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and
(4) such other rights, if any, that are specified in such
supplemental indenture as surviving such payment and discharge,
provided that the following conditions shall have been satisfied:
(5) with reference to such provision, the Company has
irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 402(c)) with the Trustee, as trust funds
and/or obligations in trust, specifically pledged as security for,
and dedicated
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solely to, the benefit of the Holders of the Securities of that
series, (i) money in an amount, or (ii) Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than one day before the
due date of any payment referred to in clause (A) or (B) of this
paragraph (5) money in an amount or (iii) a combination thereof,
sufficient, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to the Trustee, to pay and discharge
(A) the principal of (and premium, if any) and any installment of
the principal of (and premium, if any) and/or interest on the
Outstanding Securities of that series due on the Stated Maturity or
Maturity of such principal or installment of principal and/or
interest and (B) any mandatory sinking fund payments or analogous
payments or any Additional Amounts applicable to Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(6) such deposit shall not cause the Trustee with respect to
the Securities of that series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to the Securities
of any series;
(7) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument relating to borrowed money, pursuant to which in
excess of $25,000,000 principal amount is then outstanding, to which
the Company is a party or by which it is bound;
(8) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to
Securities of that series shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day
after such date;
(9) the Company has 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
United States Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case, to the effect that Holders
of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax
on the same
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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;
(10) if the Securities of such series are to be redeemed,
either notice of such redemption shall have been given or the
Company shall have given the Trustee irrevocable directions to give
notice of such redemption in the name, and at the expense, of the
Company, under arrangements satisfactory to the Trustee;
(11) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance, as specified in this Section
901(i), have been complied with; and
(12) such supplemental indenture shall contain a provision
substantially to the same effect as the last paragraph of Section
1010 but relating to the Securities to be discharged under the terms
of such supplemental indenture; or
(j) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or 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
or any related coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of such Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(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
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rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof or
otherwise, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801
and permitted by Section 901(a) and (d)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or, subject to the provisions of Section 1002, change any
Place of Payment where the principal of any Security or any premium or
the interest thereon or any Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of repayment
at the option of the Holder, on or after the date for repayment); or
(b) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture or reduce the requirements of Section 1404
for quorum or voting; or
(c) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase the percentage in aggregate principal
amount of the Outstanding Securities of any series, the consent of whose
Holders is required for the actions specified herein or therein, or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this subsection shall
not be deemed to require the consent of any Holder of Securities or
coupons with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of
this provision, in accordance with the requirements of Section 901(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities or coupons
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN
COVENANTS
---------
SECTION 1001. Payment of Principal and any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal
of and any premium and interest on, and any Additional Amounts payable in
respect of, the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this Indenture. Any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before the Maturity thereof, other than Additional Amounts,
if any, payable as provided in Section 1004 in respect of
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principal of or any premium on such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment
is located outside the United States) 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,
and the Company hereby initially appoints the Trustee at its Corporate Trust
Office and its New York Facility as its agent to receive all such
presentations, surrenders, notices and demands. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an office or agency in a Place of Payment
for such series which is located outside the United States where Securities of
such series and any related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on Securities of
such series pursuant to Section 1004), where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served;
provided, however, that if the Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company shall
maintain a Paying Agent for the Securities of such series in London, or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and
any change in the location, of each 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 or the New York Facility of the Trustee, except that Bearer Securities
of that series and any related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1004) at the place specified for
the purpose pursuant to Section 301.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, or any premium or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that payment of principal of and any premium or interest
(including Additional Amounts payable in respect thereof) on any Bearer
Security may be made in Dollars at the Corporate Trust Office of the Trustee
if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States
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maintained for such purpose by the Company in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of 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 accordance with the requirements set forth
above for Securities of any series for such purposes. The Company shall 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 set forth in, or pursuant to, a Board Resolution or any indenture
supplemental hereto with respect to a series of Securities issuable as
Registered Securities, the Company hereby designates as Places of Payment for
each series of Securities issuable as Registered Securities the City of
Columbus, Ohio and the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office and its New York
Facility as Paying Agent and as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of and any premium or interest on or Additional Amounts with respect
to any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium, interest or Additional Amounts so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it shall, on or prior to each due date of the principal of and
any premium or interest on or any Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal and any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest or Additional Amounts, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of its
action or failure so to act.
The Company shall 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
and any premium or interest on or Additional Amounts with respect to
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 provided in or pursuant to this Indenture;
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(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 the principal of, any premium or interest on or Additional
Amounts with respect to Securities of that series; 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, discharge or defeasance 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.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, any money deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of and any premium or interest on or Additional Amounts in respect
of any Security of any series and remaining unclaimed for one year after such
principal and any premium or interest or Additional Amounts has become due and
payable shall be paid to the Company upon Company Request along with interest,
if any, that has been accumulated thereon or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security or any
coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal, premium or
interest, without interest thereon, 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 an
Authorized Newspaper in each Place of Payment for such series or to be mailed
to Holders of Registered Securities of such series, or both, 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 or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts to the Holders of such Securities, then the Company shall pay to each
Holder of such Securities or any coupon appertaining thereto the Additional
Amounts as provided therein. Whenever there is mentioned in this Indenture,
in any context, the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series pursuant hereto to
the extent that, in such context, Additional Amounts are, were or would be
payable in
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respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series
of Securities (or if the Securities of such series shall not bear interest
prior to Maturity, the first day on which a payment of principal and any
premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent
or Paying Agents, if other than the Trustee or the Company, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of such series shall be made to Holders of Securities of such
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge
described in the Securities of such series. If any such withholding shall be
required, then such Officers' Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Securities
or coupons and the Company shall pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement, which need not comply
with Section 102, signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company, as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
Section 1005, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
(b) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default pursuant
to Section 501.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
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SECTION 1007. Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary to, create,
assume or incur, or suffer or permit to exist, any Lien of any kind, as
security for borrowed money so long as any of the Securities or coupons
appertaining thereto shall remain Outstanding, upon the shares of capital
stock of any Significant Subsidiary without effectively providing prior to or
concurrently therewith that the Securities shall be secured equally and
ratably with or prior to the indebtedness or other obligations secured by such
Mortgage.
SECTION 1008. Limitation on Sale of Stock.
The Company will not, and will not permit any Significant Subsidiary to,
sell, assign, transfer or otherwise dispose of, and will not permit any
Significant Subsidiary to issue (other than to the Company), any capital stock
of any such Significant Subsidiary or securities convertible into, or options,
warrants or rights to subscribe for or to purchase, any capital stock of any
such Significant Subsidiary, except:
(a) sales or other dispositions of the shares of capital stock of a
Significant Subsidiary made to an individual for the purpose of
qualifying such individual to serve as a director of such Significant
Subsidiary; or
(b) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary for cash consideration that is at least equal to
the fair market value thereof (as determined by the Board of Directors)
if, after giving effect thereto and assuming conversion of any
convertible securities, the Company will continue to own not less than
80% of each class of capital stock of such Significant Subsidiary; or
(c) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary made in connection with a merger or consolidation,
if, after giving effect to such merger or consolidation, the Company's or
any such Significant Subsidiary's proportionate ownership share in the
resulting or surviving entity is not less than its proportionate
ownership share in such Significant Subsidiary immediately prior to such
merger or consolidation; or
(d) sales or other dispositions of shares of the capital stock of a
Significant Subsidiary made in compliance with a final order of a court
or regulatory authority of competent jurisdiction; or
(e) sales or other dispositions of shares of the capital stock of a
Subsidiary made by any Significant Subsidiary to the Company.
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SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006 and 1007 and any covenant not
currently included in this Indenture but specified as applicable to a series
of Securities as contemplated by Section 301, with respect to the Securities
of any series if before or after the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect any such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 1010. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition set
forth in Section 1007, and any additional covenants not currently included in
this Indenture but specified as applicable to the Securities of any series as
contemplated by Section 301, if
(a) with reference to this Section 1010, the Company has
irrevocably deposited or caused to be irrevocably deposited (except as
provided in Section 402(c)) with the Trustee, as trust funds and/or
obligations in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of that series,
(i) money in an amount, or (ii) Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms, without consideration of any reinvestment thereof, will
provide not later than one day before the due date of any payment
referred to in clause (A) or (B) of this subsection (a) money in an
amount, or (iii) a combination thereof, sufficient, as expressed in a
Certificate of a Firm of Independent Public Accountants delivered to the
Trustee, to pay and discharge (A) the principal of (and premium, if any)
and any installment of the principal of (and premium, if any) and/or
interest on the Outstanding Securities of that series due on the Stated
Maturity or Maturity of such principal or installment of principal and/or
interest and (B) any mandatory sinking fund payments or analogous
payments or any Additional Amounts applicable to Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities;
(b) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of
the Trust Indenture Act with respect to the Securities of any series;
(c) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument relating to
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the borrowing of money, pursuant to which in excess of $25,000,000
principal amount is then outstanding, to which the Company is a party or
by which it is bound;
(d) no Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to Securities of
that series shall have occurred and be continuing on the date of such
deposit;
(e) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and defeasance of certain obligations 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 and
defeasance had not occurred;
(f) if the Securities of such series are to be redeemed, either
notice of such redemption shall have been given or the Company shall have
given the Trustee irrevocable direction to give notice of such redemption
in the name and at the expense of the Company, under arrangements
satisfactory to the Trustee; and
(g) 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 defeasance contemplated by
this Section have been complied with.
In the event that, subsequent to the date a defeasance is effected
pursuant to this Section 1010 with respect to Securities of any series,
Additional Amounts in excess of those established as of the date such
defeasance is effected become payable in respect of such Securities, in order
to preserve the benefits of the defeasance established hereunder with respect
to such series, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of subsection (a) of
this Section 1010, within ten Business Days prior to the earlier to occur of
(i) one year after the existence of such excess Additional Amounts is
established and (ii) the date the first of any portion of such excess
Additional Amounts becomes due, such additional funds as are necessary to
satisfy the provisions of such subsection (a) as if a defeasance were being
effected as of the date of such subsequent deposit. For purposes of this
paragraph, the existence of excess Additional Amounts shall be deemed to have
been established as of the date the governmental authority imposing the tax,
duty, assessment or other governmental charge resulting in the Additional
Amounts first publishes the legislation, regulation or other enactment
adopting such tax, duty, assessment or other governmental charge. Failure to
comply with the requirements of this paragraph shall result in the termination
of the benefits of the defeasance established by this Section 1010 with
respect to the Securities of such series.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
------------------------
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the option
of the Company of Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series 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 which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected by the
Trustee not more than 60 days prior to the Redemption Date from the
Outstanding Securities of such series having such terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered 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 and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to each
Holder of Securities to be redeemed. Failure to give such notice by mailing
in the manner therein provided to the Holder of any Registered Security
designated for redemption as a whole or in part, or any defect in the notice
to any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Security or portion thereof.
Any notice that is given in the manner provided in Section 106 shall be
conclusively presumed to have been duly given, whether or not the Holder of
Securities receives the notice.
All notices of redemption shall state, to the extent applicable:
(a) the Redemption Date;
(b) the Redemption Price and accrued interest, if any;
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be
redeemed;
(d) in case any Registered Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Registered Security or
Registered Securities of authorized denominations for the principal
amount thereof remaining unredeemed;
(e) that on the Redemption Date the Redemption Price and any
accrued interest and Additional Amounts shall become due and payable upon
each such Security or portion thereof to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date;
(f) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto;
(g) that the redemption is for a sinking fund, if such is the case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless
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security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(i) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made; and
(j) the CUSIP number (or any other numbers used by a Depository to
identify such Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. 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 except in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest
on and Additional Amounts in respect of, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
If notice of redemption has been given as provided in Section 1104, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price,
together with any accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable only upon presentation and surrender of coupons for such interest
(at an office or agency located outside the United States except as otherwise
provided in Section 1002), and provided, further, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Dates or Special Record Dates, as the
case may be, according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest (and any Additional Amounts)
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency for such Security located outside of
the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, any premium, and, to the extent
permitted by applicable law, the interest required to be paid thereon shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Registered Securities of the same
series containing identical terms and provisions, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered. If a Security in global form is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the U.S.
Depository or other Depository for such Security in global form as shall be
specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and
in exchange for the unredeemed portion of the principal of the Security in
global form so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
-------------
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to the sinking fund,
if any, for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of a series required to be made
pursuant to the terms of such Securities (i) deliver Outstanding Securities of
such series (other than any of such Securities previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (ii) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, as provided for by the terms of such Securities; provided
that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (or such shorter notice as the Trustee may approve), the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to
be satisfied by delivering or crediting Securities of that series pursuant to
Section 1202, the basis for any such crediting and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
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sinking fund payment, the Company shall thereupon be obligated to pay the
amount therein specified. 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 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
----------------------------------
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities, the
Company may arrange for the purchase of any Securities by an agreement with
one or more investment bankers or other purchasers to purchase such Securities
by paying to the Holders of such Securities on or before the close of business
on the repayment date an amount not less than the repayment price payable by
the Company on repayment of such Securities, and the obligation of the Company
to pay the repayment price of such Securities shall be satisfied and
discharged to the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
---------------------------------
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable, in whole or in part, as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by or pursuant to this Indenture to be made, given or
taken by Holders of Securities of such series.
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SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or in such other place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York for such
meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities
of such series, or (ii) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or which the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities expressly provides may be
made, given, or taken by the Holders of a specified percentage that is less or
greater than a majority in aggregate principal amount of the Outstanding
Securities of a series, then with respect to such action (and only such
action), the Persons entitled to vote such
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lesser or greater percentage in aggregate principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1402(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum with respect to each action to be
considered at such meeting.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting duly convened or an adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or which the supplemental indenture, Board Resolution or other
instrument authorizing such series of Securities expressly provides may be
made, given or taken by the Holders of a specified percentage, that is less or
greater than a majority, in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting duly convened or an
adjourned meeting duly reconvened and at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of any series in regard to proof of
the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker
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authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1402
and, if applicable, Section 1404. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter
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to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein
stated.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
OLD NATIONAL BANCORP
By:
---------------------------------
Attest: Xxxx X. Xxxxx, Chairman and Chief
Executive Officer
By:
--------------------------------------
Xxxxxxx X. Xxxxxx, Corporate Secretary
and General Counsel
BANK ONE, NA
By:
---------------------------------
Attest: Xxx Xxxxxxx, Assistant Vice
President
By:
--------------------------------------
Xxx Xxxxxxx, Assistant Vice
President
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STATE OF INDIANA )
)
COUNTY OF VANDERBURGH: )
On the ______ day of _______________________, 1997, before me personally
came Xxxx X. Xxxxx, to me known, who, being by me duly sworn, did depose and
say that he is the Chairman and Chief Executive Officer of Old National
Bancorp, one of the corporations described in and which executed the foregoing
instrument, and that he signed his name thereto by like authority.
--------------------------------------
Notary Public
--------------------------------------
Printed Name
My Commission Expires: County of Residence:
---------------------- --------------------
STATE OF )
)
COUNTY OF )
On the _____ day of ________________, 1997, before me personally came Xxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of Bank One, NA, one of the corporations
described in and which executed the foregoing instrument, and that he signed
his name thereto by like authority.
--------------------------------------
Notary Public
--------------------------------------
Printed Name
My Commission Expires: County of Residence:
---------------------- --------------------
SS-115952-3
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