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EXHIBIT 4.3
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XXXXXXX CONTROLS, INC.
TO
CHASE MANHATTAN BANK DELAWARE,
TRUSTEE
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INDENTURE
Dated as of , 199
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SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS*
Page
Parties 1
Recitals 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions 1
Affiliate 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Company 2
Company Request and Company Order 3
Conversion Date 3
Currency Determination Agent 3
Current Market Price 3
Debt Security or Debt Securities 3
Debt Security Register 3
Depository 3
Dollar 4
Dollar Equivalent of the Foreign Currency 4
Event of Default 4
Foreign Currency 4
Global Debt Security 4
Government Obligations 4
Holder 5
Indenture 5
Indexed Debt Security 5
Interest 5
Interest Payment Date 5
Market Exchange Rate 5
Officers' Certificate 5
Opinion of Counsel 6
Original Issue Discount Debt Security 6
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* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Outstanding 6
Person 7
Place of Payment 7
Predecessor Debt Security 7
Principal Office of the Trustee 8
Public Notice 8
Redemption Date 8
Redemption Price 8
Regular Record Date 8
Responsible Officer 8
Senior Indebtedness 9
Special Record Date 9
Stated Maturity 9
Subsidiary 9
Trustee 9
Trust Indenture Act of 1939 10
Valuation Date 10
Voting Stock 10
ARTICLE TWO.
Debt Security Forms.
SECTION 2.01. Forms Generally 10
SECTION 2.02. Forms of Debt Securities 11
SECTION 2.03. Form of Trustee's Certificate of Authentication 11
SECTION 2.04. Debt Securities in Global Form 12
ARTICLE THREE.
The Debt Securities.
SECTION 3.01. Title and Terms 14
SECTION 3.02. Denominations 16
SECTION 3.03. Payment of Principal and Interest 16
SECTION 3.04. Execution of Debt Securities 17
SECTION 3.05. Temporary Debt Securities 19
SECTION 3.06. Exchange and Registration of Transfer of Debt Securities 19
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities 21
SECTION 3.08. Payment of Interest; Interest Rights Preserved 22
SECTION 3.09. Persons Deemed Owners 23
SECTION 3.10. Cancellation of Debt Securities Paid, etc 23
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SECTION 3.11. Currency and Manner of Payments 24
ARTICLE FOUR.
Redemption of Debt Securities; Sinking Funds.
SECTION 4.01. Applicability of Article 26
SECTION 4.02. Notice of Redemption; Selection of Debt Securities 26
SECTION 4.03. Payment of Debt Securities Called for Redemption 27
SECTION 4.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption 28
SECTION 4.05. Provisions with Respect to any Sinking Funds 28
ARTICLE FIVE.
Particular Covenants of the Company
SECTION 5.01. Payment of Principal, Premium and Interest 30
SECTION 5.02. Offices for Notices and Payments, etc 30
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office 31
SECTION 5.04. Provisions as to Paying Agent 31
SECTION 5.05. Certificate to Trustee 32
SECTION 5.06. Waivers of Covenants 32
ARTICLE SIX.
Holders' Lists and Reports by the Company and the Trustee.
SECTION 6.01. Holders' Lists 32
SECTION 6.02. Preservation and Disclosure of Lists 33
SECTION 6.03. Reports by the Company 33
SECTION 6.04. Reports by the Trustee 33
ARTICLE SEVEN.
Remedies of the Trustee and Holders on Event of Default.
SECTION 7.01. Events of Default 34
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor 37
SECTION 7.03. Application of Moneys Collected by Trustee 39
SECTION 7.04. Proceedings by Holders 40
SECTION 7.05. Proceedings by Trustee 41
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SECTION 7.06. Remedies Cumulative and Continuing 41
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders 41
SECTION 7.08. Notice of Defaults 42
SECTION 7.09. Undertaking to Pay Costs 42
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest 42
ARTICLE EIGHT.
Concerning the Trustee.
SECTION 8.01. Duties and Responsibilities of Trustee 43
SECTION 8.02. Reliance on Documents, Opinions, etc 43
SECTION 8.03. No Responsibility for Recitals, etc 44
SECTION 8.04. Trustee and Agents May Own Debt Securities 45
SECTION 8.05. Moneys to be Held in Trust 45
SECTION 8.06. Compensation and Expenses of Trustee 45
SECTION 8.07. Officers' Certificate as Evidence 46
SECTION 8.08. Conflicting Interest of Trustee 46
SECTION 8.09. Eligibility of Trustee 46
SECTION 8.10. Resignation or Removal of Trustee 46
SECTION 8.11. Acceptance by Successor Trustee 48
SECTION 8.12. Succession by Merger, etc 49
SECTION 8.13. Limitation on Rights of Trustee as a Creditor 49
SECTION 8.14. Authenticating Agents 50
ARTICLE NINE.
Concerning the Holders.
SECTION 9.01. Action by Holders 53
SECTION 9.02. Proof of Execution by Holders 53
SECTION 9.03. Who Are Deemed Absolute Owners 53
SECTION 9.04. Company-Owned Debt Securities Disregarded 53
SECTION 9.05. Revocation of Consents; Future Holders Bound 54
ARTICLE TEN.
Holders' Meetings.
SECTION 10.01. Purposes of Meetings 55
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SECTION 10.02. Call of Meetings by Trustee 55
SECTION 10.03. Call of Meetings by Company or Holders 55
SECTION 10.04. Qualifications for Voting 56
SECTION 10.05. Regulations 56
SECTION 10.06. Voting 57
SECTION 10.07. No Delay of Rights by Meeting 57
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. Supplemental Indentures without Consent of Holders 58
SECTION 11.02. Supplemental Indentures with Consent of Holders 59
SECTION 11.03. Effect of Supplemental Indentures 60
SECTION 11.04. Notation on Debt Securities 61
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee 61
ARTICLE TWELVE.
Consolidation, Merger, Sale and Conveyance.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms 61
SECTION 12.02. Successor Corporation to be Substituted 62
SECTION 12.03. Opinion of Counsel to Be Given Trustee 62
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series 63
SECTION 13.02. Defeasance of Debt Securities of any Series 65
SECTION 13.03. Application of Trust Funds; Indemnification 66
SECTION 13.04. Return of Unclaimed Moneys 67
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers and Directors.
SECTION 14.01. Indenture and Debt Securities Solely Corporate Obligations 67
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ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Provisions Binding on Successors of the Company 68
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of Debt
Securities. 68
SECTION 15.03. Addresses for Notices, etc. 68
SECTION 15.04. New York Contract 69
SECTION 15.05. Evidence of Compliance with Conditions Precedent 69
SECTION 15.06. Legal Holidays 69
SECTION 15.07. Trust Indenture Act of 1939 to Control 69
SECTION 15.08. Table of Contents, Headings, etc 70
SECTION 15.09. Determination of Principal Amount 70
SECTION 15.10. Execution in Counterparts 70
ARTICLE SIXTEEN.
Subordination of Debt Securities.
SECTION 16.01. Debt Securities Subordinated to Senior
Indebtedness 70
SECTION 16.02. Subrogation 72
SECTION 16.03. Obligation of the Company Unconditional 72
SECTION 16.04. Payments on Debt Securities Permitted 73
SECTION 16.05. Effectuation of Subordination by Trustee 73
SECTION 16.06. Knowledge of Trustee 73
SECTION 16.07. Trustee May Hold Senior Indebtedness 74
SECTION 16.08. Rights of Holders of Senior Indebtedness Not
Impaired 74
Signatures 75
Acknowledgements 75
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CROSS REFERENCE SHEET
BETWEEN
Provisions of Sections 310 through 318(a) inclusive of Trust Indenture Act
of 1939 and the Indenture dated as of February 22, 1995 between Xxxxxxx
Controls, Inc. and Chase Manhattan Bank Delaware, as Trustee.
SECTION OF ACT SECTION OF INDENTURE
310(a)(1) and (2) ................................. 8.09
310(a)(3) and (4) ................................. *
310(b) ............................................ 8.08 and 8.10
310(c) ............................................ *
311(a) ............................................ 8.13(a)
311(b) ............................................ 8.13(b)
311(c) ............................................ *
312(a) ............................................ 6.01 and 6.02(a)
312(b) ............................................ 6.02(b)
312(c) ............................................ 6.02(c)
313(a)(1), (2), (3), (4), (6) and (7) ............. 6.04(a)(1-6)
313(a)(5) ......................................... *
313(b)(1) ......................................... *
313(b)(2) ......................................... 6.04(b)
313(c) ............................................ 6.04(c)
313(d) ............................................ 6.04(d)
314(a)(1) ......................................... 6.03(a)
314(a)(2) ......................................... 6.03(b)
314(a)(3) ......................................... 6.03(c)
314(b) ............................................ *
314(c)(1) ......................................... 15.05
314(c)(2) ......................................... 15.05
314(c)(3) ......................................... *
314(d) ............................................ *
314(e) ............................................ 15.05
314(f) ............................................ *
315(a), (c) and (d) ............................... 8.01
315(b) ............................................ 7.08
315(e) ............................................ 7.09
316(a)(1) ......................................... 7.07
316(a)(2) ......................................... *
316(a) last para................................... 9.04
316(b) ............................................ 7.10
317(a) ............................................ 7.02
317(b) ............................................ 5.04
318(a) ............................................ 15.07
______________________
* Not applicable.
** This cross reference sheet shall not, for any purpose, be deemed to be part
of the Indenture.
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THIS INDENTURE, dated as of , 199 , between Xxxxxxx
Controls, Inc., a Wisconsin corporation (the "Company"), and Chase Manhattan
Bank Delaware, a Delaware banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issue from time to time of its unsecured
subordinated debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series as in this Indenture provided, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to one
or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or
acceptance of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the respective
Holders from time to time of the Debt Securities or of any series thereof as
follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, shall have (except as herein otherwise expressly provided or unless
the context otherwise requires) the meanings assigned to such terms in said
Trust Indenture Act of 1939 and in said Securities Act as in force at the date
of the execution of this Indenture. All accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation. All
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references to such terms herein shall be both to the singular or the plural, as
the context so requires.
AFFILIATE:
The term "Affiliate", when used with respect to 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:
The term "Authenticating Agent" shall mean the agent of the Trustee,
if any, which at the time shall be appointed and acting pursuant to Section
8.14.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any authorized committee of such Board designated by the Board of
Directors or the by-laws or the articles of incorporation of the Company to act
for such Board for purposes of this Indenture.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution certified by
a Vice President, the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
COMPANY:
The term "Company" shall mean Xxxxxxx Controls, Inc., a Wisconsin
corporation, and, subject to Article Twelve, shall include its successors and
assigns.
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COMPANY REQUEST AND COMPANY ORDER:
The terms "Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, Vice Chairman of the Board, President or a Vice President, and by its
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer, and delivered
to the Trustee.
CONVERSION DATE:
The term "Conversion Date" shall have the meaning set forth in Section
3.11:
CURRENCY DETERMINATION AGENT:
The term "Currency Determination Agent" shall mean the financial
institution, if any, from time to time selected by the Company and approved by
the Trustee for purposes of Section 3.11.
CURRENT MARKET PRICE:
The term "Current Market Price" means the closing price (or, if none,
the average of the last daily bid and asked prices) of the applicable class of
capital stock as quoted by the primary securities exchange on which the stock is
traded, or, if none, the primary inter-dealer quotation system, which reports
quotations for the class of capital stock, for the last trading day immediately
prior to the Calculation Date.
DEBT SECURITY OR DEBT SECURITIES:
The terms "Debt Security" or "Debt Securities" shall mean any
unsecured notes, debentures or other indebtedness of any series, as the case may
be, issued by the Company from time to time, and authenticated and delivered
under this Indenture.
DEBT SECURITY REGISTER:
The term "Debt Security Register" shall have the meaning set forth in
Section 3.06.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise specified by the
Company pursuant to Section 3.01, with respect to Securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New York,
New York, or any
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successor thereto registered as a clearing agency pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation.
DOLLAR:
The term "Dollar" shall mean the coin or currency of the United States
of America which as of the time of payment is legal tender for the payment of
public and private debts.
DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY:
The term "Dollar Equivalent of the Foreign Currency" shall have the
meaning set forth in Section 3.11.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
FOREIGN CURRENCY:
The term "Foreign Currency" shall mean a currency issued by the
government of any country other than the United States of America.
GLOBAL DEBT SECURITY:
The term "Global Debt Security" means a Debt Security issued to
evidence all or part of a series of Debt Securities.
GOVERNMENT OBLIGATIONS:
The term "Government Obligations" means securities which are (i)
direct obligations of the government which issued the currency in which the Debt
Securities of a series are denominated or (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the currency in which the Debt Securities of such series
are denominated, the payment of which obligations is unconditionally guaranteed
by such government, and which, in either case, are full faith and credit
obligations of such government, are denominated in the currency in which the
Debt Securities of such series are denominated and which are not callable or
redeemable at the option of the issuer thereof.
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HOLDER:
The term "Holder" means any Person in whose name a Debt Security of
any series is registered in the Debt Security Register applicable to Debt
Securities of such series.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, pursuant to the applicable provisions hereof.
INDEXED DEBT SECURITY
The term "Indexed Debt Security" means a Debt 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:
The term "interest", when used with respect to an Original Issue
Discount Debt Security which by its terms bears interest only after maturity,
means interest payable after maturity.
INTEREST PAYMENT DATE:
The term "Interest Payment Date", when used with respect to any series
of Debt Securities, means the Stated Maturity of an installment of interest on
such Debt Securities.
MARKET EXCHANGE RATE:
The term "Market Exchange Rate" shall have the meaning set forth in
Section 3.11.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate", when used with respect to the
Company, shall mean a certificate signed by its Chairman of the Board, Vice
Chairman of the Board, President, or a Vice President and by its Treasurer,
Secretary, Assistant Secretary or Assistant Treasurer and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 15.05 to the extent required by the provisions of such Section.
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OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who may be an employee of or counsel to the Company, and who
shall be reasonable acceptable to the Trustee. Each such opinion shall include
the statements provided for in Section 3.04 and Section 15.05 to the extent
required by the provisions of such Sections.
ORIGINAL ISSUE DISCOUNT DEBT SECURITY:
The term "Original Issue Discount Date Security" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 7.01.
OUTSTANDING:
The term "Outstanding", when used with respect to Debt Securities or
Debt Securities of any series, means, as of the date of determination, all such
Debt Securities theretofore authenticated and delivered under this Indenture,
except:
(i) such Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Debt Securities for whose payment or redemption money
in the necessary amount and in the specified currency has been
theretofore deposited with the Trustee or any paying agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent) for the
Holders of such Debt Securities, provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) such Debt Securities in exchange for or in lieu of which
other such Debt Securities have been authenticated and delivered
pursuant to this Indenture, or such Debt Securities which have been
paid, pursuant to this Indenture, unless proof satisfactory to the
Trustee is presented that any such Debt Securities are held by Persons
in whose hands any of such Debt Securities are a legal, valid and
binding obligation of the Company, and
(iv) such Debt Securities the indebtedness in respect to which
has been discharged in accordance with Section 13.02.
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provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, such
Debt Securities owned by the Company or such other obligor upon such Debt
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, only such Debt
Securities which the Trustee knows to be so owned shall be so disregarded.
Such Debt Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debt Securities and
that the pledgee is not the Company or any other such obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor. In case of a
dispute as to such right, the decision of the Trustee upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all such Debt Securities, if any, known by the Company
to be owned or held by or for the account of any of the above described
Persons; and, subject to the provisions of Section 8.01, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all such Debt Securities not
listed therein are Outstanding for the purpose of any such determination.
PERSON:
The term "Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT:
The term "Place of Payment", when used with respect to the Debt
Securities of any series, means the place or places where the principal of
(premium, if any) and interest on the Debt Securities of that series are payable
as specified in accordance with Section 3.01.
PREDECESSOR DEBT SECURITY:
The term "Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
as that evidenced by such particular Debt Security, and for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.07 in
lieu of a mutilated, lost, destroyed or stolen Debt Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Debt
Security.
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PRINCIPAL OFFICE OF THE TRUSTEE:
The term "principal office of the Trustee", or other similar terms,
means the principal office of the Trustee in Wilmington, Delaware, at which at
any particular time its corporate trust business shall be administered, which
office on the date hereof is located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
PUBLIC NOTICE:
The term "Public Notice" shall, without limitation, include any filing
or report made in accordance with the requirements of the Securities and
Exchange Commission or any press release or public announcement made by the
Company.
REDEMPTION DATE:
The term "Redemption Date", when used with respect to any Debt
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
REDEMPTION PRICE:
The term "Redemption Price", when used with respect to any Debt
Security to be redeemed, means the price specified in such Debt Security at
which it is to be redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Debt
Security on any Interest Payment Date means the date specified in such Debt
Security as the "Regular Record Date" as contemplated by Section 3.01.
RESPONSIBLE OFFICER:
The term "Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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SENIOR INDEBTEDNESS:
The term "Senior Indebtedness" means (i) the principal of and premium,
if any, and unpaid interest on indebtedness for money borrowed, (ii) purchase
money and similar obligations, (iii) obligations under capital leases, (iv)
guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Company is responsible for the payment of,
such indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings; and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts,
and similar arrangements, unless, in each case, the instrument by which the
Company incurred, assumed or guaranteed the indebtedness or obligations
described in clauses (i) through (vii) hereof expressly provides that such
indebtedness or obligation is not senior in right of payment to the Debt
Securities.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 3.08) means a date fixed by the Trustee pursuant
to Section 3.08.
STATED MATURITY:
The term "Stated Maturity" when used with respect to any Debt Security
or any instalment of principal thereof or of interest thereon, means the date
specified in such Debt Security as the fixed date on which the principal of such
Debt Security, or such instalment of interest, is due and payable.
SUBSIDIARY:
The term "Subsidiary" means any corporation of which the Company, or
the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own more than 50% of the Voting Stock.
TRUSTEE:
The term "Trustee" shall mean Chase Manhattan Bank Delaware and,
subject to the provisions of Article Eight hereof, shall also include its
successors and assigns as Trustee hereunder.
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TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this Indenture was
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act of 1939" means to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
VALUATION DATE:
The term "Valuation Date" shall have the meaning set forth in Section
3.11.
VOTING STOCK:
The term "Voting Stock" means outstanding shares of capital stock
having under ordinary circumstances voting power for the election of directors
whether at all times or only so long as no senior class of stock has such voting
power by reason of the happening of any contingency.
ARTICLE TWO.
DEBT SECURITY FORMS.
SECTION 2.01. Forms Generally. The Debt Securities of each series
and the certificates of authentication thereon shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture (the provisions of which shall be appropriate to
reflect the terms of each series of Debt Securities, including the currency or
denomination, which may be Dollars or Foreign Currency), and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their signing of such
Debt Securities. Any portion of the text of any Debt Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Debt Security.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange, all as
determined by the officers executing such Debt Securities, as evidenced by their
signing of such Debt Securities.
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SECTION 2.02. Forms of Debt Securities. The Debt Securities of each
series shall be in such form or forms (including global form) as shall be
established by or pursuant to a Board Resolution.
Prior to the delivery of a Debt Security of any series in any such
form to the Trustee for the Debt Securities of such series for authentication,
the Company shall deliver to the Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to the Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
together with any coupons appertaining thereto, when (a) completed by
appropriate insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, (b) authenticated and
delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors, and (c) sold in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the Company,
subject to applicable bankruptcy, reorganization, insolvency and other similar
laws generally affecting creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Debt Securities.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Debt Securities or
coupons, as evidenced by their execution thereof.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
following is the form of the Certificate of Authentication of the Trustee to be
endorsed on the face of all Debt Securities substantially as follows:
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This is one of the Debt Securities of the series
designated herein issued under the within-mentioned
Indenture.
CHASE MANHATTAN BANK DELAWARE
as Trustee
By
------------------------------------
Authorized Officer
SECTION 2.04. Debt Securities in Global Form. (a) If the Company
shall establish pursuant to Section 3.01 that the Debt Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Debt Securities, then the Company shall execute and the Trustee or
its agent shall, in accordance with Section 3.04 and the Company Order delivered
to the Trustee or its agent thereunder, authenticate and deliver such Global
Debt Security or Global Debt Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series to be represented by such Global Debt
Security or Global Debt Securities, or such portion thereof as the Company shall
specify in a Company Order, (ii) shall be registered in the name of the
Depository for such Global Debt Security or Global Debt Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depository
or pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless this certificate is presented by
an authorized representative of the Depository to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depository or in such other name as
is requested by an authorized representative of the Depository (and any payment
is made to the nominee of the Depository or to such other entity as is requested
by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, the nominee of the Depository, has an interest
herein."
(b) Notwithstanding any other provision of this Section 2.04 or of
Section 3.06, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Debt Security expressly permit such Global Debt Security to be
exchanged in whole or in part for individual certificates representing Debt
Securities, a Global Debt Security may be transferred, in whole but not in part
and in the manner provided in Section 3.06, only to a nominee of the Depository
for such Global Debt Security, or to the Depository, or a successor Depository
for such Global Debt Security selected or approved by the Company, or to a
nominee of such successor Depository.
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(c) (1) If at any time the Depository for a Global Debt Security
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Debt Security or if at any time the Depository for the Global
Debt Securities for such series shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depository with
respect to such Global Debt Security. If a successor Depository for such Global
Debt Security is not appointed by the Company within 90 days after the Company
receives notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or its agent, upon receipt of a Company Request for the
authentication and delivery of certificates representing Debt Securities of such
series in exchange for such Global Debt Security, will authenticate and deliver,
certificates representing Debt Securities of such series of like tenor
and terms in an aggregate principal amount equal to the principal amount of the
Global Debt Security in exchange for such Global Debt Security.
(2) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Debt Securities shall no longer be represented by
such Global Debt Security or Global Debt Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of certificates representing Debt Securities of such
series in exchange in whole or in part for such Global Debt Security, will
authenticate and deliver certificates representing Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Debt Security or Global Debt
Securities representing such series or portion thereof in exchange for such
Global Debt Security or Global Debt Securities.
(3) If specified by the Company pursuant to Section 3.01 with respect
to Debt Securities issued or issuable in the form of a Global Debt Security, the
Depository for such Global Debt Security may surrender such Global Debt Security
in exchange in whole or in part for certificates representing Debt Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depository. Thereupon the Company shall
execute, and the Trustee or its agent shall authenticate and deliver, without a
service charge, (1) to each Holder specified by the Security Registrar or the
Depository a certificate or certificates representing Securities of the same
series of like tenor and terms and of any authorized denomination as requested
by such person in an aggregate principal amount equal to and in exchange for
such Holder's beneficial interest as specified by the Security Registrar or the
Depository in the Global Debt Security; and (2) to such Depository a new Global
Debt Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered Global
Debt Security and the aggregate principal amount of certificates representing
Debt Securities delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and
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deliver certificates representing Debt Securities in definitive registered form
in authorized denominations for Debt Securities of the same series or any
integral multiple thereof. Upon the exchange of the entire principal amount of
a Global Debt Security for certificates representing Debt Securities, such
Global Debt Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, certificates representing Debt Securities
issued in exchange for a Global Debt Security pursuant to this Section shall be
registered in such names and in such authorized denominations for Debt
Securities of that Series or any integral multiple thereof, as the Security
Registrar or Depository shall instruct the Trustee or its agent. The Trustee or
the Security Registrar shall deliver at its Corporate Trust Office such
certificates representing Debt Securities to the Holders in whose names such
Debt Securities are so registered.
ARTICLE THREE.
THE DEBT SECURITIES.
SECTION 3.01. Title and Terms. The aggregate principal amount of
Debt Securities which may be authenticated and delivered under this Indenture is
unlimited. The Debt Securities may be issued up to the aggregate principal
amount of Debt Securities from time to time authorized by or pursuant to a Board
Resolution.
The Debt Securities may be issued in one or more series. All Debt
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or maturity of the Debt Securities of
such series. There shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate to the extent not established in a
Board Resolution, or established in one or more indentures supplemental hereto,
prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other series of
Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to this Article
Three, the second paragraph of Section 4.03, or Section 11.04);
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(3) the date or dates (or the manner of calculation thereof) on
which the principal of the Debt Securities of the series is payable;
(4) the rate or rates (or the manner of calculation thereof) at
which the Debt Securities of the series shall bear interest, if any,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the Interest payable on any Interest Payment Date;
(5) the Place of Payment;
(6) the period or periods within which, the price or prices at
which, the currency or currency units in which, and the terms and
conditions upon which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices in the currency at
which, the currency or currency units in which, and the terms and
conditions upon which Debt Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(8) the denominations in which the Debt Securities of such series
shall be issuable if other than denominations of $1,000 and any
integral multiple thereof;
(9) the application, if any, of Section 13.02;
(10) if other than Dollars, the currencies in which payments of
interest or principal of (and premium, if any, with respect to) the
Debt Securities of the series are to be made;
(11) if the interest on or principal of (or premium, if any, with
respect to) the Debt Securities of the series are to be payable, at
the election of the Company or a Holder thereof or otherwise, in a
currency other than that in which such Debt Securities are payable,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the currency in such Debt
Securities are denominated or stated to be payable and the currency in
which such Debt Securities or any of them are to be so payable;
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(12) whether the amount of payments of interest on or principal
of (or premium, if any, with respect to) the Debt Securities of such
series may be determined with reference to an index, formula or other
method (which index, formula or method or method 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;
(13) the extent to which any Debt Securities will be issuable in
permanent global form, the manner in which any payments on a permanent
global Debt Security will be made, and the appointment of any
Depository relating thereto;
(14) any deletions from, modifications of or additions to the
Events of Default or covenants with respect to the Debt Securities of
such series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(15) if any of the Debt Securities of such series are to be
issuable upon the exercise of warrants, this shall be so established
as well as the time, manner and place for such Debt Securities to be
authenticated and delivered;
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
SECTION 3.02. Denominations. The Debt Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated in Section 3.01. In the absence of any
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof, which may be in Dollars or any Foreign Currency.
SECTION 3.03. Payment of Principal and Interest. The principal of,
premium, if any, and interest on the Debt Securities shall be payable at the
office or agency of the Company designated for that purpose in the Place of
Payment, as provided in Section 5.02; provided, however, that interest may be
payable at the option of the Company by check
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mailed to the address of the Person entitled thereto as such address shall
appear on the Debt Security Register on the record date for such interest
payment.
SECTION 3.04. Execution of Debt Securities. The Debt Securities
shall be executed manually or by facsimile in the name and on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise). Only such Debt
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, manually executed by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or become obligatory for
any purpose. Such certificate by the Trustee upon any Debt Security executed by
the Company shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
In case any officer of the Company who shall have executed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
executed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless shall be valid and binding
and may be authenticated and delivered or disposed of as though the Person who
executed such Debt Securities had not ceased to be such officer of the Company;
and any Debt Securities may be executed on behalf of the Company by such Persons
as, at the actual date of the execution of such Debt Security, shall be the
proper officers of the Company, although at the date of such Debt Security or of
the execution of this Indenture any such Person was not such an officer.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series, properly
created in accordance with Section 3.01 and executed by the Company, to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Debt Securities upon Company Order. In the event that any other Person performs
the Trustee's duties as Authenticating Agent pursuant to a duly executed
agreement, the Company shall notify the Trustee in writing of the issuance of
any Debt Securities hereunder, such notice to be delivered in accordance with
the provisions of Section 15.03 on the date such Debt Securities are delivered
by the Company for authentication to such other Person.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, in addition
to the Opinion of Counsel to be furnished to the Trustee pursuant to Section
15.05 and the Officers' Certificate relating to the issuance of any series of
Debt Securities pursuant to Sections 15.05 and 3.01, Opinions of Counsel stating
that:
(1) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
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hereunder for the Trustee to authenticate and deliver such Debt
Securities;
(2) all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture, if any, have
been complied with, the execution and delivery of the supplemental
indenture, if any, will not violate the terms of this Indenture, the
supplemental indenture has been duly qualified under the Trust
Indenture Act of 1939, the Company has corporate power to execute and
deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental
indenture has been executed and delivered and constitutes the legal,
valid and binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
(3) the form and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture;
(4) all laws and requirements with respect to the execution and
delivery by the Company of such Debt Securities have been complied
with, the authentication and delivery of the Debt Securities by the
Trustee will not violate the terms of this Indenture, the Company has
the corporate power to issue such Debt Securities and such Debt
Securities, assuming due authentication and delivery by the Trustee,
constitute legal, valid and binding obligations of the Company in
accordance with their terms and are entitled to the benefits of this
Indenture, equally and ratably with all other Outstanding Debt
Securities, if any, of such series; and
(5) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Debt
Securities if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Debt Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or such action
would expose the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Debt Security for any
series, all Debt Securities shall be dated the date of their authentication.
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No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Debt Security shall be conclusive evidence, and the only evidence, that such
Debt Security has been duly authenticated and delivered hereunder.
SECTION 3.05. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
receipt of the documents required by Sections 2.02, 3.01 and 3.04, together with
a Company Order, the Trustee shall authenticate and deliver, such temporary Debt
Securities which may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations, substantially of the tenor
of such definitive Debt Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such temporary Debt Securities may determine, as
evidenced by their execution of such temporary Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of any
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, upon surrender of the temporary Debt
Securities of such series at any office or agency maintained by the Company for
such purposes as provided in Section 5.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefore a like principal amount of definitive Debt Securities of
such series having the same interest rate and Stated Maturity and bearing
interest from the same date of any authorized denominations. Until so exchanged
the temporary Debt Securities of such series shall in all respects be entitled
to the same benefits under this Indenture as definitive Debt Securities of such
series.
SECTION 3.06. Exchange and Registration of Transfer of Debt
Securities. Debt Securities may be exchanged for a like aggregate principal
amount of Debt Securities of such series that are of other authorized
denominations. Debt Securities to be exchanged shall be surrendered at any
office or agency to be maintained for such purpose by the Company, as provided
in Section 5.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefore the Debt Security or Debt
Securities of authorized denominations which the Debt Securityholder making the
exchange shall be entitled to receive. Each agent of the Company appointed
pursuant to Section 5.02 as a person authorized to register and register
transfer of Debt Securities is sometimes herein referred to as a "Debt Security
registrar."
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The Company shall keep, at each such office or agency of the Company
maintained for such purpose, as provided in Section 5.02, a register for each
series of Debt Securities hereunder (the registers of all Debt Security
registrars being herein sometimes collectively referred to as the "Debt Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Debt Securities and shall
register the transfer of Debt Securities as in this Article Three provided. At
all reasonable times, such Debt Security Register shall be open for inspection
by the Trustee and any Debt Security registrar other than the Trustee. Upon due
presentment for registration of transfer of any Debt Security at any such office
or agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Debt
Security or Debt Securities of authorized denominations for an equal aggregate
principal amount. Registration or registration of transfer of any Debt Security
by any Debt Security registrar in the registry books maintained by such Debt
Security registrar, and delivery of such Debt Security, duly authenticated,
shall be deemed to complete the registration or registration of transfer of such
Debt Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Debt Security registrar) to act as repository of a
master list of names and addresses of Holders of the Debt Securities. The
Trustee shall act as such repository unless and until some other Person is, by
written notice from the Company to the Trustee and each Debt Security registrar,
designated by the Company to act as such. The Company shall cause each Debt
Security registrar to furnish to such repository, on a current basis, such
information as such repository may reasonably request as to registrations,
transfers, exchanges and other transactions effected by such registrar, as may
be necessary or advisable to enable such repository to maintain such master list
on as current a basis as is reasonably practicable.
No Person shall at any time be appointed as or act as a Debt Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Debt Securities presented to a Debt Security registrar for
registration of transfer shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and such Debt Security registrar duly executed by the registered Holder
or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt 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 therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Debt Securities of any series for a period of 15 days next
preceding the
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mailing of a notice of redemption of Debt Securities of such series and ending
at the close of business on the day of the mailing of a notice of redemption of
Debt Securities of such series so selected for redemption, or (b) any Debt
Securities selected, called or being called for redemption except, in the case
of any Debt Security to be redeemed in part, the portion thereof not so to be
redeemed.
All Debt Securities issued in exchange for or upon registration of
transfer of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such exchange or registration
of transfer.
None of the Trustee, any agent of the Trustee, any Paying Agent or the
Company 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 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its request the Trustee shall authenticate and deliver, a new Debt Security,
bearing a number, letter or other distinguishing xxxx not contemporaneously
Outstanding, in exchange and substitution for the mutilated Debt Security, or in
lieu of and in substitution for the Debt Security so destroyed, lost or stolen.
In every case the applicant for a substituted Debt Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft, of such Debt Security and
of the ownership thereof.
In the absence of notice to the Trustee or the Company that such Debt
Security has been acquired by a bona fide purchaser, the Trustee shall
authenticate any such substituted Debt Security and deliver the same upon any
Company Request. Upon the issuance of any substituted Debt Security, 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 connected therewith. In case any Debt Security which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Debt Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debt Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction, loss
or theft of such Debt Security and of the ownership thereof.
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Every substituted Debt Security issued pursuant to the provisions of
this Section 3.07 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities duly issued
hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude (to the extent permitted by law) any and all other rights or
remedies with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, on any Debt Security, shall unless otherwise provided in
such Debt Security be paid to the Person in whose name the Debt Security (or one
or more Predecessor Debt Securities) is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise stated in the form of Debt Security of a series,
interest on the Debt Securities of any series shall be computed on the basis of
a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Debt Securities (or
their respective Predecessor Debt 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 Debt 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 deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the
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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 therefore to be mailed, first-class postage prepaid, to each
Holder of such Debt Securities, at his address as it appears in the
Debt Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Debt Securities (or their respective Predecessor Debt
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of that series may be
listed, and upon such notice as may be required by such exchange, if ,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name any
Debt Security is registered as the owner of such Debt Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.08) interest on, such Debt Security and for all other purposes whatsoever
whether or not such Debt Security be overdue, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 3.10. Cancellation of Debt Securities Paid, etc. All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer or delivered in satisfaction in whole or in part of any
sinking fund obligation shall, if surrendered to the Company or any agent of the
Trustee or the Company under this Indenture, be delivered to the Trustee and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Debt Securities shall be issued in lieu
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thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Debt Securities in accordance
with a Company Order.
SECTION 3.11. Currency and Manner of Payments. (a) With respect to
Debt Securities denominated in Dollars or a Foreign Currency, the following
payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(c) of this Section 3.11, payment of principal of and premium, if any,
on any Debt Securities will be made at the offices established
pursuant to Section 5.02 by delivery of a check in the currency in
which the Debt Security is denominated on the payment date against
surrender of such Debt Security, and any interest on any Debt Security
will be paid at such office by mailing a check in the currency in
which the Debt Securities were issued to the Person entitled thereto
at the address of such Person appearing on the Debt Security Register.
(2) Payment of the principal of and premiums, if any, and
interest on such Debt Security may also, subject to applicable laws
and regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) Not later than the fourth Business Day after the Record Date for
such Interest Payment Date, the Paying Agent will deliver to the Company a
written notice specifying, in the currency in which each series of the Debt
Securities are denominated, the respective aggregate amounts of principal of and
premium, if any, and interest on the Debt Securities to be made on such payment
date, specifying the amounts so payable in respect of the Debt Securities. The
failure of the Paying Agent to deliver such notice shall not relieve the Company
from its obligation to make all payments with respect to any Debt Security when
due.
(c) If the Foreign Currency in which any of the Debt Securities are
denominated ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, then with respect to each date
for the payment of Foreign Currency occurring after the last date on which the
Foreign Currency was so used (the "Conversion Date"), the Dollar shall be the
currency of payment for use on each such Interest Payment Date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any paying
agent to the Holder of such Debt Securities with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency as determined by the
Currency Determination Agent as of the Record Date (the "Valuation Date") in the
manner provided in paragraph (d).
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(d) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent as of each Valuation Date and
shall be obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Valuation Date.
(e) The "Market Exchange Rate" shall mean, for any currency, the
highest firm bid quotation for U.S. dollars received by the Currency
Determination Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date (or, if no such rate
is quoted on such date, the last date on which such rate was quoted), from three
recognized foreign exchange dealers in the City of New York selected by the
Currency Determination Agent and approved by the Company (one of which may be
the Currency Determination) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of such currency
payable on such payment in respect of all Notes denominated in such currency.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities. In the event that the Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 15.03 to the
Holders) specifying the Conversion Date.
The Trustee shall be fully justified and protected in relying on and
acting upon the information so received by it from the Company or the Currency
Determination Agent and shall not otherwise have any duty or obligation to
determine such information independently.
If the principal of (and premium, if any) and interest on any Debt
Securities is payable in a Foreign Currency and such Foreign Currency is not
available for payment due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then the Company shall be
entitled to satisfy its obligations to Holders under this Indenture by making
such payment in Dollars on the basis of the Market Exchange Rate for such
Foreign Currency on the latest date for which such rate was established on or
before the date on which payment is due. Any payment made pursuant to this
Section 3.11 in Dollars where the required payment is in a Foreign Currency
shall not constitute a default under this Indenture.
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ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.
SECTION 4.01. Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the Debt
Securities of any series, either by optional redemption, sinking fund (mandatory
or optional) or otherwise, by provision therefor in the form of Debt Security
for such series on such terms as are specified in such form or the Board
Resolution or Officers' Certificate delivered pursuant to Section 3.01 or the
indenture supplemental hereto as provided in Section 3.01 with respect to Debt
Securities of such series. Redemption of Debt Securities of any series shall be
made in accordance with the terms of such Debt Securities and, to the extent
that this Article does not conflict with such terms, in accordance with this
Article.
SECTION 4.02. Notice of Redemption; Selection of Debt Securities. In
case the Company shall desire to exercise the right to redeem all, or, as the
case may be, any part of a series of Debt Securities pursuant to Section 4.01,
the Company shall fix a date for redemption and the Company, or, at the
Company's request, the Trustee in the name of and at the expense of the
Company, shall mail a notice of such redemption at least 30 and not more than 60
days prior to the date fixed for redemption to the Holders of Debt Securities so
to be redeemed as a whole or in part at their last addresses as the same appear
on the Debt Securities Register. Such mailing shall be by first class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security.
Notice of redemption shall be given in the name of the Company and
shall specify the date fixed for redemption, the redemption price at which Debt
Securities of any series are to be redeemed, the place of payment (which shall
be at the offices or agencies to be maintained by the Company pursuant to
Section 5.02), that payment of the redemption price will be made upon
presentation and surrender of such Debt Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice,that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, and the Section of this Indenture pursuant to which Debt
Securities will be redeemed. In case less than all Debt Securities of any
series are to be redeemed, the notice of redemption shall also identify the
particular Debt Securities to be redeemed as a whole or in part and shall state
that the redemption is for the sinking fund, if such is the case. In case any
Debt Security is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of
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such series in aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Holder.
If less than all the Debt Securities of any series are to be redeemed,
the Company shall give the Trustee notice, at least 45 days (or such shorter
period acceptable to the Trustee) in advance of the date fixed for redemption,
as to the aggregate principal amount of Debt Securities to be redeemed. Debt
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Debt Securities of such Series or any multiple thereof.
Thereupon the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof to be
redeemed, and shall as promptly as practicable notify the Company of the Debt
Securities or portions thereof so selected. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Debt Securities of any series shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Debt Security which has been or is to be redeemed.
On or prior to the date fixed for redemption specified in the notice
of redemption given as provided in this Section 4.02, the Company will deposit
with the Trustee or with the paying agent an amount of money in the currency in
which the Debt Securities of such series are payable sufficient to redeem on the
date fixed for redemption all the Debt Securities so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption.
The Trustee shall not mail any notice of redemption of any series of
Debt Securities during the continuation of any default in payment of interest on
any series of Debt Securities when due or of any Event of Default, except that
where notice of redemption with respect to any series of Debt Securities shall
have been mailed prior to the occurrence of such default or Event of Default,
the Trustee shall redeem such Debt Securities provided funds are deposited with
it for such purpose.
SECTION 4.03. Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as herein provided, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Debt Securities or portions thereof at the
redemption price, together with interest accrued to said date) interest on the
Debt Securities or portions of Debt Securities so called for redemption shall
cease to accrue, and such Debt Securities and portions of Debt Securities shall
be deemed not to be Outstanding hereunder and shall not be entitled to any
benefit under this Indenture except to receive payment of the redemption price,
together with accrued interest to the date fixed for redemption. On
presentation and surrender of such Debt Securities at the place of payment in
said notice specified, the said Debt Securities or the specified portions
thereof shall be
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paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided,
however, that any installments of interest becoming due on the date fixed for
redemption shall be payable to the Holders of such Debt Securities, or one or
more previous Debt Securities evidencing all or a portion of the same debt as
that evidenced by such particular Debt Securities, registered as such on the
relevant record dates according to their terms and the provisions of Section
3.08.
Upon presentation and surrender of any Debt Security redeemed in part
only, with, if the Company or the Trustee so required, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series having the same interest rate and
Stated Maturity and bearing interest from the same date, of any authorized
denominations as requested by such Holder, in aggregate principal amount equal
to the unredeemed portion of the Debt Security so presented and surrendered.
SECTION 4.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Debt Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by a Responsible Officer of the
Company and delivered to the Trustee at least 45 days prior to the last date on
which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company.
SECTION 4.05. Provisions with Respect to any Sinking Funds. Unless
the form or terms of any series of Debt Securities shall provide otherwise, in
lieu of making all or any part of any mandatory sinking fund payment with
respect to such series of Debt Securities in cash, the Company may at its option
(1) deliver to the Trustee for cancellation any Debt Securities of such series
theretofore acquired by the Company, or (2) receive credit for any Debt
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee for cancellation, then Debt Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to the Debt Securities of such series.
On or before the 45th day next preceding each sinking fund Redemption
Date, the Company will deliver to the Trustee a certificate signed by the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company specifying (i) the portion of the mandatory sinking fund payment
to be satisfied by deposit of cash in the currency in which the Debt Securities
of such series are payable, by delivery of Debt Securities theretofore purchased
or otherwise acquired by the Company (which Debt Securities shall accompany such
certificate) and by credit for Debt Securities
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acquired by the Company and theretofore delivered to the Trustee for
cancellation redeemed by the Company and stating that the credit to be applied
has not theretofore been so applied and (ii) whether the Company intends to
exercise its right, if any, to make an optional sinking fund payment, and, if
so, the amount thereof. Such certificate shall also state that no Event of
Default has occurred and is continuing. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In case of the failure of the Company on or before the 45th
day next preceding each sinking fund Redemption Date to deliver such certificate
(or to deliver the Debt Securities specified in this paragraph), the sinking
fund payment due on the next succeeding sinking fund payment date shall be paid
entirely in cash (in the currency described above) and shall be sufficient to
redeem the principal amount of Debt Securities as a mandatory sinking fund
payment, without the option to deliver or credit Debt Securities as provided in
the first paragraph of this Section 4.04 and without the right to make an
optional sinking fund payment as provided herein.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Debt Securities made in cash (in the currency described
above) shall exceed the minimum authorized denomination set forth in an
Officers' Certificate pursuant to Section 3.01 or the equivalent in the currency
in which the Debt Securities of such series are payable (or a lesser sum if the
Company shall so request), unless otherwise provided by the terms of such series
of Debt Securities, said cash shall be applied by the Trustee on the sinking
fund Redemption Date with respect to Debt Securities of such series at the
applicable sinking fund Redemption Price with respect to Debt Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 4.03. The Trustee shall select,
in the manner provided in Section 4.02, for redemption on such sinking fund
Redemption Date a sufficient principal amount of Debt Securities of such series
to utilize said cash and shall thereupon cause notice of redemption of the Debt
Securities of such series for the sinking fund to be given in the manner
provided in Section 4.02 (and with the effect provided in Section 4.03) for the
redemption of Debt Securities in part at the option of the Company. Debt
Securities of any series which are identified by registration and certificate
number in an Officer's Certificate at least 45 days prior to the sinking fund
Redemption Date as being beneficially owned by, and not pledged or hypothecated
by, the Company or an entity directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company shall be excluded
from Debt Securities of such series eligible for selection for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities of such series shall be added to the next cash sinking fund
payment with respect to Debt Securities of such series received by the Trustee
and, together with such payment, shall be applied in accordance with the
provisions of this Section 4.05. Any and all sinking fund moneys with respect
to Debt Securities of any series held by the Trustee at the maturity of Debt
Securities of such series, and not held for the payment or redemption of
particular Debt Securities of such series, shall be applied by the Trustee,
together with other moneys, if necessary, to be
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deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of such series at maturity.
The Trustee shall not convert any currency in which the Debt
Securities of such series are payable for the purposes of such sinking fund
application unless a Company Request is made, and any such conversion agreed to
by the Trustee in response to such request shall be for the account and at the
expense of the Company and shall not affect the Company's obligation to pay the
Holders in the currency to which such Holder is entitled.
On or before each sinking fund Redemption Date provided with respect
to Debt Securities of any series, the Company shall pay to the Trustee in cash
in the currency described above a sum equal to all accrued interest, if any, to
the date fixed for redemption on Debt Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 4.05.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company will duly and punctually pay or cause to be paid (in the currency in
which the Debt Securities of such series are payable) the principal of and
premium, if any, and interest on each of the Debt Securities at the place
(subject to Section 3.03), at the respective times and in the manner provided in
each series of Debt Securities and in this Indenture.
SECTION 5.02. Offices for Notices and Payments, etc. (a) So long as
the Debt Securities of any series remain Outstanding, the Company will maintain
at the Place of Payment, an office or agency where the Debt Securities may be
presented for payment, an office or agency where the Debt Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided, and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be served and
shall give the Trustee written notice thereof and any changes in the location
thereof. In case the Company shall at any time fail to maintain any such office
or agency, or shall fail to give notice to the Trustee of any change in the
location thereof, presentation and demand may be made and notice may be served
in respect of the Debt Securities or of this Indenture at said office of the
Trustee.
(b) In addition to the office or agency maintained by the Company
pursuant to Section 5.02(a), the Company may from time to time designate one or
more other offices or agencies where the Debt Securities may be presented for
payment and presented for registration of transfer and for exchange in the
manner provided in this
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Indenture, and the Company may from time to time rescind such designations, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain such office and agency at the Place of Payment, for the
purposes abovementioned. The Company will give to the Trustee prompt written
notice of (i) any such designation or rescission thereof, and (ii) the location
of any such office or agency outside the Place of Payment and of any change of
location thereof.
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.04. Provisions as to Paying Agent. (a) (1) Whenever the
Company shall have one or more Paying Agents for any series of Debt Securities
other than the Trustee, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Debt Securities of such series, deposit
with a Paying Agent a sum sufficient to pay such amount becoming due, such sum
to be held as provided by the Trust Indenture Act of 1939, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(2) The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will: (i) comply with the provisions of the Trust Indenture
Act of 1939 applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon any series of Debt
Securities) in the making of any payment in respect of the Debt Securities of
such series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.
(b) If the Company shall act as its own paying agent, it will, on or
prior to each due date of the principal of and premium, if any, or interest on
Debt Securities of any series, set aside, segregate and hold in trust for the
benefit of the Holders of such Debt Securities a sum sufficient to pay such
principal and premium, if any, or interest so becoming due and will notify the
Trustee of any failure to take such action and of any failure by the Company (or
by any other obligor on such series of Debt Securities) to make any payment of
the principal of and premium, if any, or interest on the Debt Securities when
the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to any or all series of Debt Securities
then Outstanding, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by the Company,
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or any paying agent hereunder, as required by this Section 5.04, such sums to be
held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust provided in this Section 5.04 is subject to
Section 13.04.
SECTION 5.05. Certificate to Trustee. So long as the Debt Securities
of any series remain Outstanding, the Company will deliver to the Trustee on or
before 120 days after the end of each fiscal year an Officers' Certificate
stating that in the course of the performance by the signers of their duties as
officers of the Company, they would normally have knowledge of any default by
the Company in the performance or fulfillment or observance of any covenants or
agreements contained herein during the preceding fiscal year, stating whether or
not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof. The
Officers' Certificate need not comply with Section 15.05.
SECTION 5.06. Waivers of Covenants. Anything in this Indenture to
the contrary notwithstanding, the Company may fail or omit, in respect of any
series of Debt Securities, and in any particular instance, to comply with a
covenant, agreement or condition contained in Sections 5.02 and 5.04 (other than
in 5.04(a)(1) and (2)) to 5.05, inclusive, if the Company shall have obtained
and filed with the Trustee before or after the time for such compliance the
consent in writing of the Holders of more than 50% in aggregate principal amount
of the Debt Securities of the series affected by such waiver at the time
Outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not expressly waived nor impair any right
consequent thereon 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.
ARTICLE SIX.
HOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders' Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, not more than 15 days
after each Regular Record Date with respect to the Debt Securities of any
series, and at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list in such form as
the Trustee may reasonably require of the names and addresses of the Holders of
Debt Securities of such series as of a date not more than 15 days prior to the
time such information is furnished; provided, however, that no such list with
respect to any particular series of Debt Securities need be furnished at any
such time if the
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Trustee is in possession thereof by reason of its acting as the Debt Security
registrar for such series designated under Section 3.06 or otherwise.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Debt Securities
contained in the most recent list furnished to it as provided in Section 6.01 or
received by the Trustee in the capacity of the Debt Security registrar (if so
acting) under Section 3.06. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities of any
series or of all Debt Securities, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act of 1939.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act of 1939.
SECTION 6.03. Reports by the Company. The Company agrees to file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act of 1939 at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
SECTION 6.04. Reports by the Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act of 1939 at
the times and in the manner provided pursuant thereto. The interval between
transmissions of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the Trust Indenture Act of 1939. If the Trust
Indenture Act of 1939 does not specify the date on which a report is due, the
such report shall be due on May 15 of each year following the first issuance of
Debt Securities.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which Debt
Securities of any series are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Debt Securities of any series are
listed on any stock exchange.
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ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default. Event of Default, with respect to
any series of Debt Securities, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture under which such series of Debt Securities is issued
or in the form of Debt Security for such series:
(a) default in the payment of any installment of interest upon
any Debt Security of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of and premium, if
any, on any Debt Security of such series as and when the same shall
become due and payable either at maturity, upon redemption, by
declaration of acceleration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
payment or analogous obligation, if any, with respect to the Debt
Securities of such series as and when the same shall become due and
payable by the terms of the Debt Securities of such series; or
(d) failure on the part of the Company duly to observe or perform
any of the covenants, warrants or agreements on the part of the
Company in respect of the Debt Securities of such series in this
Indenture (other than a covenant, warranty or agreement a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with) continued for a period of 75 days after the
date on which written notice of such failure, specifying such failure
and requiring the same to be remedied, shall have been given to the
Company by the Trustee, by registered mail, or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Debt Securities of such series; or
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(e) an event of default with respect to any other series of Debt
Securities issued or hereafter issued pursuant to this Indenture or if
default shall be made (and shall not have been cured or waived) in the
payment of principal of or interest on any other obligation for
borrowed money of the Company beyond any period of grace with respect
thereto if (i) the aggregate principal amount (or, in the case of
Original Issue Discount Debt Securities, such portion of the principal
amount as may be specified in the terms of such indebtedness as due
and payable upon acceleration) of any such obligation in respect of
which principal or interest is and remains in default is in excess of
$50,000,000 and (ii) the default in such payment is not being
contested by the Company in good faith and by appropriate proceedings;
provided, however, that subject to the provisions of Section 7.08 and
Section 8.01 the Trustee shall not be charged with knowledge of any
such default unless written notice thereof shall have been given to
the Trustee by the Company, by the holders or an agent of the holders
of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have
occurred, or by the Holders of not less than 25% in aggregate
principal amount of such series of Debt Securities at the time
Outstanding; or
(f) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Federal bankruptcy laws or any
other similar applicable Federal or state law, and such decree or
order shall have continued undischarged and unstayed for a period of
60 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
assignee or other similar official in bankruptcy or insolvency of the
Company or of all or substantially all of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have continued undischarged and unstayed
for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking an arrangement or a reorganization under the Federal
bankruptcy laws or any other similar applicable Federal or state law,
or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee
or other similar official in bankruptcy or insolvency of it or of all
or
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substantially all of its property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Debt Securities is issued or in
the form of Debt Security for such series;
then and in each and every such case, so long as such Event of Default with
respect to any series of Debt Securities for which there are Debt Securities
Outstanding occurs and is continuing and shall not have been remedied or waived
to the extent permitted by the terms of this Indenture, unless the principal of
all of the Debt Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of such series, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal (or, if the Debt Securities of that series are Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Debt Securities of such series and the interest
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Debt Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Debt Securities of such series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay in the currency in which the Debt Securities of such series
are payable all matured installments of interest upon all of the Debt Securities
and the principal of and premium, if any, on any and all Debt Securities of such
series which shall have become due otherwise than by such declaration (with
interest on overdue installments of interest to the extent that payment of such
interest is enforceable under applicable law and on such principal and premium,
if any, at the rate borne by the Debt Securities of such series or as otherwise
provided in the form of Debt Security for such series, to the date of such
payment or deposit) and the expenses of the Trustee (subject to Section 8.06),
and any and all defaults under this Indenture, other than the nonpayment of
principal of and accrued interest on Debt Securities of such series which shall
have become due by such declaration, shall have been cured or shall have been
waived in accordance with Section 7.07 or provision deemed by the Trustee to be
adequate shall have been made therefor - then and in every such case the Holders
of at least a majority in aggregate principal amount of the Debt Securities of
such series then Outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
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In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the Holders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceeding had been taken.
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the payment of
any instalment of interest upon any Debt Security of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the
principal of and premium, if any, on any Debt Security of any series as and when
the same shall have become due and payable, whether at maturity of the Debt
Security or upon redemption or by declaration or otherwise or (c) in case
default shall be made in the making or satisfaction of any sinking fund payment
or analogous obligation with respect to the Debt Securities of any series when
the same becomes due by the terms of the Debt Securities of any series--then,
upon demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the Holders (or Holders of Debt Securities of any such series in the case of
clause (c) above), the whole amount that then shall have become due and payable
on any such Debt Security (or Debt Securities of any such series in the case of
clause (3) above) for principal and premium, if any, or interest, or both, as
the case may be, with interest upon the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate borne by the Debt
Securities of such series or as otherwise provided in the form of Debt Security
of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred and advances made by the Trustee, except compensation or
advances arising, or expenses or liabilities incurred, as a result of the
Trustee's negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and premium, if any, and interest on the Debt Securities of any
series to the Persons entitled thereto, whether or not the principal of and
premium, if any, and interest on the Debt Securities of such series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such Debt
Securities and collect, in the manner provided
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by law out of the property of the Company or any other obligor on such Debt
Securities wherever situated, the moneys adjudged or decreed to be payable. If
any Event of Default with respect to any series of Debt Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities of
any series under the Federal bankruptcy laws or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities of
any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 7.02, shall be
entitled and empowered by intervention in such proceedings or otherwise, (a) to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debt Securities of such series, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Debt Securities of such series allowed in such
judicial proceedings relative to the Company or any other obligor on such Debt
Securities, its or their creditors, or its or their property, (b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of any Debt Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders of the
Debt Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred and advances made by the Trustee
except compensation or advances arising, or expenses or liabilities incurred, as
a result of the Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the
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rights of any Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder (except, as aforesaid, for the election of a trustee in
bankruptcy or other Person performing similar functions) in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any of such Debt Securities, or the production thereof
on any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be for the ratable
benefit of the Holders of the Debt Securities of such series in respect of which
such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Debt Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Debt Securities parties to
any such proceedings.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 7.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Debt Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of
collection and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and
liabilities incurred, and all advances made, by the Trustee
except compensation or advances arising, or expenses or
liabilities incurred, as a result of its negligence or bad
faith, and any other amounts owing the Trustee under Section
8.06;
SECOND: To the payment of the amounts then due and
unpaid to the holders of Senior Indebtedness, to the extent
required by Article Sixteen;
THIRD: In case the principal of the Debt Securities of
such series shall not have become due and be unpaid, to the
payment of interest on such Debt Securities, in the order of
the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at
the rate borne by such Debt Securities, such payments to be
made ratable to the Persons entitled thereto;
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FOURTH: In case the principal of the Debt Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon such Debt
Securities for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by such Debt
Securities; and in case such moneys shall be insufficient to pay in
full the whole amounts so due and unpaid upon such Debt Securities,
then, to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any,
or of any instalment of interest over any other instalment of
interest, or of any Debt Security of such series over any other such
Debt Security, ratably to the aggregate of such principal and premium,
if any, and accrued and unpaid interest;
FIFTH: To the payment of any surplus then remaining to the
Company, its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same.
SECTION 7.04. Proceedings by Holders. No Holder of any Debt Security
of any series shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at
law or in bankruptcy or otherwise upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then Outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding (and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.07), it being understood and intended, and being
expressly covenanted by the taker and Holder of every Debt Security of every
series with every other taker and Holder and the Trustee, that no one or more
Holders of Debt Securities shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of such Debt Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Debt Securities.
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SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 7.04, every
power and remedy given by this Article Seven or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Outstanding Debt 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 Debt Securities by this Indenture; provided, however, that
(subject to the provisions of Section 8.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or would be materially and unjustly prejudicial to the rights of Holders not
joining in such direction or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability or if the
Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Debt Securities of all series not joining in the
giving of said direction, it being understood that (subject to Section 8.01) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are duly prejudicial to such Holders. The Trustee may take any
other action deemed proper by the Trustee not inconsistent with such direction.
The Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all the Debt Securities
of such series waive any past default or Event of Default hereunder and its
consequences except a default in the
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payment of principal of or premium, if any, or interest on such Debt Securities,
or a default in the making of any sinking fund payment with respect to such Debt
Securities. Upon any such waiver the Company, the Trustee and the Holders of
such Debt Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default shall have been waived as permitted by
this Section 7.07, said default or Event of Default shall for all purposes of
the Debt Securities and this Indenture be deemed to have been cured and to be
not continuing.
This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act of 1939 and such Sections 316(a)(1)(A)
and Section 316(a)(1)(B) are hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
SECTION 7.08. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act of 1939; provided, however, that in the case of any default of the
character specified in Section 7.07(d), no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 7.09. Undertaking to Pay Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act of 1939; provided
that neither this Section nor the Trust Indenture Act of 1939 shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, and any provision of the Trust Indenture
Act of 1939 to such effect is hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security shall have the rights, which are absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.08) interest on such Debt Security on the respective
Stated Maturities expressed in such Debt Security (or in the case of redemption
or repayment, on the date for redemption or repayment, as the case may be) 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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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act
of 1939. Notwithstanding the foregoing, no implied covenants or obligations,
except as provided by the Trust Indenture Act of 1939, shall be read into this
Indenture against the Trustee, and no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 8.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 8.01,
(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, consent, order, bond,
debenture, note or other paper document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless otherwise evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions
of this Indenture, unless such Holders shall have offered to the
Trustee
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reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default with respect
to the Debt Securities of any series and after the curing or waiving
of all Events of Default with respect to such Debt Securities, 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, consent, order, approval, bond,
debenture, note, or other paper or document, unless requested in
writing to do so by the Holders of not less than a majority in
principal amount of such Debt Securities then Outstanding; provided,
however, that the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and provided, further, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to so proceeding;
(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 liable or
responsible for any misconduct, bad faith or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have knowledge of any
default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or Holders of greater than 50% of
the outstanding principal amount of Debt Securities of any series
shall have notified the Trustee thereof.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Debt Securities (except in the Trustee's certificate
of authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debt Securities of any series. The
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Trustee represents that it is duly authorized to execute and deliver this
Indenture and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company or any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee and Agents May Own Debt Securities. The
Trustee, any paying agent, or any agent of the Trustee or the Company under this
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities of any series with the same rights it would have if
it were not Trustee or such agent and, subject to Sections 8.08 and 8.13, if
operative, may otherwise deal with the Company and receive, collect, hold, and
retain collections from the Company with the same rights it would have if it
were not the Trustee or such agent.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions
of Section 13.04, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon. So long as no Event of Default with
respect to the Debt Securities of any series shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Company, signed by its President, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and all persons not regularly in its employ and any amounts paid by the Trustee
to any Authenticating Agent pursuant to Section 8.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, or the performance of its duties
hereunder, including the current payment of all costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 8.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debt Securities
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upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Debt
Securities.
SECTION 8.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. If the Trustee has or
shall acquire any conflicting interest within the meaning of the Trust Indenture
Act of 1939, the Trustee shall either eliminate such conflicting interest or
resign in the manner provided by, and subject to the provisions of, the Trust
Indenture Act of 1939 and this Indenture.
SECTION 8.09. Eligibility of Trustee. There shall at all times be a
Trustee with respect to each series of Debt Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
or any state or territory thereof or of the District of Columbia authorized
under such laws to exercise corporate trust power's, having a combined capital
and surplus of at least $5,000,000, subject to supervision or examination by
Federal, state, territorial, or District of Columbia authority and having its
principal office and place of business in Wilmington, Delaware, if there be such
a corporation having its principal office and place of business in said City and
willing to act as Trustee hereunder. If such corporation 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 8.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee with respect
to any series of Debt Securities shall cease to be eligible in accordance with
the provisions of this Section 8.09, such Trustee shall resign immediately in
the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may
at any time resign with respect to any series of Debt Securities by giving
written notice by first class mail of such resignation to the Company and to the
Holders of such series of Debt Securities at their addresses as they shall
appear on the Debt Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with respect
to such series by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee with respect to such series
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shall have been so appointed and have accepted appointment within 60 days after
the mailing of such notice of resignation to the Holders, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of such series of Debt Securities who has been
a bona fide Holder of a Debt Security or Debt Securities of such series for at
least six months may, subject to the provisions of Section 7.09, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint such successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 8.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt
Security or Debt Securities of such series for at least six months,
unless the Trustee's duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act of 1939, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Holder of a note of
such series, or
(3) the Trustee shall become incapable of acting with respect to
any series of Debt Securities, 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, the Company may remove the Trustee with respect to such
series and appoint a successor trustee for such series by written instrument, in
duplicate, executed on instruction of the President, The Chief Financial Officer
or the Treasurer of the Company, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 7.09, any Holder who has been a bona fide Holder of a
Debt Security or Debt Securities 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 removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove such Trustee
and appoint such successor trustee.
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(c) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may at any time remove the Trustee
with respect to such series by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 9.01 of the action in that regard taken by the Holders, and nominate a
successor Trustee which shall be deemed appointed as successor Trustee unless
within ten days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Holder of a Debt Security or Debt Securities of
such series, upon the terms and conditions and otherwise as in subsection (a) of
this Section 8.10 provided, may petition any court of competent jurisdiction for
an appointment of a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee with respect to all or
any series of Debt Securities and any appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective with respect to all or any series as
to which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder with respect to all
or any such series, with like effect as if originally named as Trustee herein
with respect to all or any such series; nevertheless, on the written request of
the Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 8.06,
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee with respect to all or any such series so
ceasing to act. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee with respect to all or any series as to
which it is resigning as Trustee, to secure any amounts and shall be entitled to
any indemnities then due it pursuant to the provisions of Section 8.06.
No successor Trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to
all or any series of Debt Securities as provided in this Section 8.11, the
Company shall mail notice of the succession of such Trustee hereunder to the
Holders of Debt Securities of such series at their addresses as they shall
appear on the Debt Security Register. If the Company
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fails to mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Company.
In case the appointment hereunder of a successor Trustee with respect
to the Debt Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Debt Securities
of any applicable series shall execute and deliver an indenture supplemental
hereto which 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 Debt Securities of any series as to which
the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 8.12. Succession by Merger, etc. Subject to Sections 8.08
and 8.09, 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 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.
In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Debt
Securities so authenticated; and in case at that time any of the Debt Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Debt Securities either in the name of such successor Trustee or, if such
successor Trustee is a successor by merger, conversion or consolidation, the
name of any predecessor hereunder; and in all such cases such certificate shall
have the full force which it is anywhere in the Debt Securities or in this
Indenture provided that the certificate of the Trustee shall have.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act of 1939 regarding the collection of claims against the
Company (or any such other obligor).
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SECTION 8.14. Authenticating Agents. There may be an Authenticating
Agent or Authenticating Agents appointed by the Trustee from time to time with
power to act on its behalf and subject to its direction in the authentication
and delivery of any series of Debt Securities issued upon original issuance,
exchange, transfer or redemption thereof as fully to all intents and purposes as
though such Authenticating Agent (or Authenticating Agents) had been expressly
authorized to authenticate and deliver such Debt Securities, and Debt Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as though authenticated by the Trustee
hereunder. For all purposes of this Indenture, the authentication and delivery
of Debt Securities by any Authenticating Agent pursuant to this Section 8.14
shall be deemed to be the authentication and delivery of such Debt Securities
"by the Trustee", and whenever this Indenture provides that "the Trustee shall
authenticate and deliver" Debt Securities or that Debt Securities "shall have
been authenticated and delivered by the Trustee", such authentication and
delivery by any Authenticating Agent shall be deemed to be authentication and
delivery by the Trustee. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or Territory or the District of Columbia, with a
combined capital and surplus of at least $5,000,000 and authorized under such
laws to act as an authenticating agent, duly registered to act as such, if and
to the extent required by applicable law and subject to supervision or
examination by Federal or State authority. If such corporation publishes
reports of its condition at least annually pursuant to law or the requirements
of such authority, then for the purposes of this Section 8.14 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, or to be duly registered if
and to the extent required by applicable law and regulations, it shall resign
immediately in the manner and with the effect herein specified in this Section
8.14.
Whenever reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series 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 its Authenticating Agent
appointed with respect to the Debt Securities of such series and a certificate
of authentication executed on behalf of the Trustee by its Authenticating Agent
appointed with respect to the Debt Securities of such series.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the authenticating agency
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 8.14, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent or such successor corporation.
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In case at the time such successor to any such agency shall succeed to
such agency any of the Debt Securities shall have been authenticated but not
delivered, any such successor to such Authenticating Agent may adopt the
certificate of authentication of any predecessor Authenticating Agent and
deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Debt Securities either in the name of
any predecessor hereunder or in the name of the successor Authenticating Agent;
and in all cases such certificate shall have the full force which it has
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have had such force;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Authenticating Agent or to authenticate Debt Securities in the
name of any predecessor Authenticating Agent shall apply only to its successor
or successors by merger, conversion or consolidation.
Any Authenticating Agent may at any time resign as Authenticating
Agent with respect to any series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to any series of
Debt Securities 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 Authenticating Agent shall cease to
be eligible under this Section 8.14, the Trustee may, and shall, upon request of
the Company, promptly use its best efforts to appoint a successor Authenticating
Agent.
Upon the appointment, at any time after the original issuance of any
of the Debt Securities, of any successor, additional or new Authenticating
Agent, the Trustee shall give written notice of such appointment to the Company
and shall at the expense of the Company mail notice of such appointment to all
Holders of Debt Securities of such series as the names and addresses of such
Holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to any series of Debt
Securities upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect
as though originally named as an Authenticating Agent herein with respect to
such series. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 8.14 and duly registered if and to
the extent required under applicable law and regulations.
Any Authenticating Agent by the acceptance of its appointment with
respect to any series of Debt Securities shall be deemed to have agreed with the
Trustee that: it will perform and carry out the duties of an Authenticating
Agent as herein set forth with respect to such series, including among other
things the duties to authenticate and deliver Debt Securities when presented to
it in connection with exchanges, registrations of transfer or redemptions
thereof; it will keep and maintain, and furnish to the Trustee from time to time
as requested by the Trustee appropriate records of all transactions carried out
by it as
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Authenticating Agent and will furnish the Trustee such other information and
reports as the Trustee may reasonably require; it is eligible for appointment as
Authenticating Agent under this Section 8.14 and will notify the Trustee
promptly if it shall cease to be so qualified; and it will indemnify the Trustee
against any loss, liability or expense incurred by the Trustee and will defend
any claim asserted against the Trustee by reason of any acts or failures to act
of the Authenticating Agent with respect to such series but it shall have no
liability for any action taken by it at the specific written direction of the
Trustee.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04,
8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03 shall bind
and inure to the benefit of each Authenticating Agent to the same extent that
they bind and inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant
to this Section 8.14, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Debt Securities of the series designated herein
issued under the within-mentioned Indenture.
CHASE MANHATTAN BANK CHASE MANHATTAN BANK
DELAWARE DELAWARE
As Trustee As Trustee
- OR -
By: By: The Chase Manhattan Bank
---------------------- As Authenticating Agent
Authorized Officer
By:
----------------------------
Authorized Signatory
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ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage of such series have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders of such series in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of such series voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Ten, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders of
such series.
SECTION 9.02. Proof of Execution by Holders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Debt Securities shall be provided by the Debt Security Register or
by a certificate of the Debt Security registrar with respect to a series of Debt
Securities.
The record of any Holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the
Trustee with respect to a series of Debt Securities, and any agent of the
Trustee or the Company under this Indenture may deem the Person in whose name
such Debt Security shall be registered upon the Debt Security Register to be,
and may treat him as, the absolute owner of such Debt Security (whether or not
such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Company, the
Trustee or any such agent) for the purpose of receiving payment of or on account
of the principal of and premium, if any, and interest on such Debt Security and
for all other purposes; and neither the Company nor the Trustee nor any such
agent shall be affected by any notice to the contrary. All such payments so
made to any Holder for the time being or upon his order shall, to the extent of
the sum or sums so paid, be effectual to satisfy and discharge the liability for
moneys payable upon any such Debt Security.
SECTION 9.04. Company-Owned Debt Securities Disregarded. In
determining whether the Holders of the requisite aggregate principal amount of
Debt Securities of any series have concurred in any direction or consent under
this Indenture, Debt
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Securities of such series which are owned by the Company or any other obligor on
the Debt Securities of such series or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on such Debt Securities shall be disregarded and
deemed not to be Outstanding for the propose of any such determinations;
provided, however, that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction or consent only such Debt
Securities which the Trustee knows are so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding notwithstanding this Section 9.04 if the pledgee shall establish to
the satisfaction of the Trustee the right of the pledgee to vote such Debt
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officer's Certificate listing and
identifying all Debt Securities of a series, if any, known by the Company to be
owned or held by or for the account of the Company or any other obligor on such
Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on such Debt Securities; and, subject to the provisions of Section
8.01, the Trustee shall be entitled to accept such Officers' Certificates as
conclusive evidence of the facts therein set forth and of the fact that all such
Debt Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action, any Holder of a Debt Security
which is shown by the evidence to be included in the Debt Securities the Holders
of which have consented to or are bound by consents to such action, may, by
filing written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 9.02, revoke such action so far as concerns such
Debt Security. Except as aforesaid any such action taken by the Holder of any
Debt Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Debt Security and of any Debt Security issued
on transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Debt
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all of the Debt Securities affected by such action.
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ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings. A meeting of Holders of the
Debt Securities of all or any series may be called at any time and from time to
time pursuant to the provisions of this Article Ten for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee with
respect to such series, or to give any directions to the Trustee, or
to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Debt Securities of all or any series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Debt Securities of all or any series to take
any action specified in Section 10.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Holders of Debt
Securities of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed by the Trustee to Holders of Debt Securities of each series that
may be affected by the action proposed to be taken at such meeting at their
addresses as they shall appear on the Debt Security Register. Such notice shall
be mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at
any time the Company, pursuant to a resolution by the Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Debt Securities
then Outstanding of each series that may be affected by the action proposed to
be taken shall have requested the Trustee to call a meeting of such Holders, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Holders may determine the time and place for such meeting and may call such
meeting
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to take any action authorized in Section 10.01, by mailing notice thereof as
provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to vote at
any meeting of Holders of Debt Securities a person shall (a) be a Holder of one
or more Debt Securities of a series affected by the action proposed to be taken
or (b) be a Person appointed by an instrument in writing as proxy by a Holder of
one or more such Debt Securities. The rights of Holders of Debt Securities to
have their votes counted shall be subject to the provision in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Debt Securities 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 10.05. Regulations. 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 Debt Securities, in regard to proof of
the holding of Debt Securities 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 think
fit. Except as otherwise permitted or required by any such regulation, the
holding of Debt Securities shall be proved in the manner specified in Section
9.02 and the appointment of any proxy shall be proved in the manner specified in
said Section 9.02 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any bank, broker or trust company.
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 Debt Securities as provided in Section 10.03, in which
case the Company or the Holders of Debt Securities as provided in Section 10.03,
in which case the Company or the Holders of Debt Securities calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a secretary of the meeting shall be elected by vote of
the Holders of a majority in aggregate principal amount of the Debt Securities
represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each Holder
of a Debt Security of a series entitled to vote at such meeting or proxy shall
be entitled to one vote for each $1,000 principal amount of Debt 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 Debt 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 Debt
Securities of such series or proxy therefor. Any meeting of Holders of Debt
Securities duly called pursuant to the provisions of Section 10.02 or 10.03
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may be adjourned from time to time and the meeting may be held as so adjourned
without further notice.
At any meeting of Holders of Debt Securities, the presence of Persons
holding or representing Debt Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than
quorum be present, the Persons holding or representing a majority of the Debt
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Debt Securities shall be by written ballots on which shall
be subscribed the signatures of the holders of Debt Securities entitled to vote
at such meeting or of their representatives by proxy, and the letter or letters,
serial number or numbers or other distinguishing marks of the Debt Securities
held or represented by him. 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 duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders of
Debt Securities shall be prepared by the secretary of the meeting and there
shall be attached to said 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 mailed as provided in Section 10.02. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
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.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this
Article Ten contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders of Debt Securities of any or all
series or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders of Debt Securities under any
of the provisions of this Indenture or of the Debt Securities.
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ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01 Supplemental Indentures without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Articles Five and Twelve hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Debt Securities of any or all series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to such series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee; or to make
such other provisions in regard to matters or questions arising under
this Indenture as shall not adversely affect the interests of the
Holders of the Debt Securities;
(d) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
one or more series of Debt Securities and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 8.11;
(e) to modify, amend or supplement this Indenture in such a
manner as to permit the qualification of any indenture supplemental
hereto under the Trust Indenture Act of 1939 as then in effect, except
that nothing herein contained shall permit or authorize the inclusion
in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939;
(f) to provide for the issuance under this Indenture of Debt
Securities in coupon form (including Debt Securities registrable as to
principal only) and to provide for exchangeability of such Debt
Securities with Debt Securities of the same series issued hereunder in
fully registered form and to make all appropriate changes for such
purpose;
(g) to change or eliminate any of the provisions of this
Indenture, provided, however, that any such change or elimination
shall become effective only when there is no Debt Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(h) to establish any additional form of Debt Security, as
permitted by Section 2.02, and to provide for the issuance of any
additional series of Debt Securities, as permitted by Section 3.01,
and to set forth the terms thereof.
The Trustee is hereby required to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities at the time Outstanding,
notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Holders. With
the consent (evidenced as provided in Section 9.01) of the Holders of greater
than 50% in aggregate principal amount of the Outstanding Debt Securities of
each series affected by
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such supplemental indenture (all such Holders voting as a single class), by act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at
any time 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 any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of each
series under this Indenture; provided, however, that no such supplemental
indenture shall (i) without the consent of the Holder of each Outstanding Debt
Security affected thereby, extend the fixed maturity of any Debt Security, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or make the principal thereof
or interest or premium thereon payable in any coin or currency other than that
provided in the Debt Securities or (ii) without the consent of the Holders of
all of the Outstanding Debt Securities of each series affected reduce the
aforesaid percentage of Debt Securities, the Holders of which are required to
consent (a) to any such supplemental indenture, (b) to rescind and annul a
declaration that any Debt Securities are due and payable as a result of the
occurrence of an Event of Default, (c) to waive any past default under the
Indenture and its consequences and (d) to waive compliance with Sections 5.02
and 5.04 (other than 5.04(a)(1) and (2)) to 5.05, inclusive.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Holders of Debt Securities as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders of Debt
Securities under this Section 11.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 11.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article Eleven,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Debt Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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SECTION 11.04. Notation on Debt Securities. Debt Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee and delivered in exchange for the
Outstanding Debt Securities of such series.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
7.02, shall receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article Eleven and is authorized and permitted by this Indenture.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE AND CONVEYANCE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Debt Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all of the property of the Company to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same; provided, however, and the Company hereby covenants and
agrees, that any such consolidation, merger, sale, conveyance or lease shall be
upon the condition that (a) immediately after such consolidation, merger, sale,
conveyance or lease the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger, or to
which such sale, conveyance or lease shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Company; (b) the
corporation (if other than the Company) formed by or surviving any such
consolidation or merger or to which such sale, conveyance or lease shall have
been made, shall be a corporation organized under the laws of the United States
of America or any state thereof; and (c) the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the Corporation (if other than the
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Company) formed by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired or leased such property.
SECTION 12.02. Successor Corporation to be Substituted. In case of
any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on all of
the Debt Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to performed or observed by
the Company, 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 (except in the event of a conveyance by way of lease) the
predecessor corporation shall be relieved of any further obligation under this
Indenture and the Debt Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of
Xxxxxxx Controls, Inc. any or all of the Debt Securities 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 Debt
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Debt Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Debt Securities of each series so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Debt Securities of such series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease
such changes in phraseology and form (but not in substance) may be made in the
Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 8.01 and 8.02, shall receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article Twelve and that
all conditions precedent herein provided relating to such transactions have been
complied with.
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ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series. The Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debt Securities of a series, the
provisions of this Indenture (except as to (x) the rights of Holders of Debt
Securities of such series to receive, from the money, in the currency required,
and Government Obligations deposited with the Trustee pursuant to Section 13.03
or the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and
any installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking fund
or analogous provisions relating to Debt Securities of that series or pursuant
to any call for redemption relating to Debt Securities of that series, (y) the
Company's rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 13.03 and 13.04, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and, to
the extent applicable to such series, Article Four, so long as the principal of
(and premium, if any) and interest on the Debt Securities of such series remain
unpaid and, thereafter, only the Company's rights and obligations under Sections
5.04, 8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such series) as
it relates to such Debt Securities shall no longer be in effect, and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same if:
(a) (1) all Debt Securities of such series therefore
authenticated and delivered (other than (i) Debt Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.07 and (ii) Debt Securities for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Sections 13.03 and 13.04)
have been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid in the currency
required all other sums payable under this Indenture in respect of the
Debt Securities of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate, an Opinion of Counsel and a written opinion of
independent public accountants, each stating that all conditions
precedent herein provided for relating to the satisfaction of the
entire indebtedness of all
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Debt Securities of any such series and the discharge of the Indenture
as it relates to such Debt Securities have been complied with; or
(b) (1) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense of
the Company;
(2) the condition described in paragraph (1) of Section 13.02
has been satisfied; and
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in paragraphs (b)(2) and
(b)(3) of this Section 13.01 have been satisfied;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 13.02 or on the ninety-first day after the date of such
deposit; provided, however, that should that condition fail to be
satisfied on or before such ninety-first day, the Trustee shall
promptly, upon satisfactory receipt of evidence of such failure,
return such deposit to the Company;
(3) the Company has either (i) delivered to the Trustee an
opinion of counsel of a nationally-recognized independent tax counsel
to the effect that Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as
a result of such deposit and the satisfaction, discharge and
defeasance contemplated by this paragraph (c) of this Section 13.01
and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (ii) the Company shall
have received from, or there shall have been published by, the United
States Internal Revenue Service a ruling to the effect stated in (i)
of this Section 13.01(c)(3); and
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(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 13.01 will not result in the delisting of the Debt Securities
of that series from any nationally-recognized securities exchange on
which they are listed.
SECTION 13.02. Defeasance of Debt Securities of any Series. The
provisions of this Indenture (except as to (x) the rights of Holders of Debt
Securities of any series to receive, from the money, in the currency required,
and Government Obligations deposited with the Trustee pursuant to paragraph (1)
below or the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and
any installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking or
analogous provisions relating to Securities of that series or pursuant to any
call for redemption relating to Debt Securities of that series, (y) the
Company's rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 13.03, 13.04, Article Seven (other than subsections (d) and
(e) of Section 7.01), Sections 5.01, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and, to
the extent application to such series, Article Four, so long as the principal of
(and premium, if any) and interest on the Debt Securities of such series remain
unpaid and, thereafter, only the Company's rights and obligations under Sections
5.04, 8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such series) as
it relates to Debt Securities of any series shall no longer be in effect, and
the Trustee, at the expense of the Company shall, upon Company Request, execute
proper instruments acknowledging the same if:
(1) the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) the Dollars of
Foreign Currency, as applicable, in an amount, or (B) Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide on or
before the due date of any payment in respect of such series of Debt
Securities in an amount, or (C) a combination thereof, sufficient,
after payment of all Federal, state and local taxes in respect thereof
payable by the Trustee, in the opinion of a nationally-recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (i) the
principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest on the Outstanding Debt Securities
of that series on the Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory sinking fund payments
or analogous payments or payments pursuant to any call for redemption
applicable to Debt Securities of such series on the day on which such
payments are due
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and payable in accordance with the terms of the Indenture and such
Debt Securities;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) the interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform
Commercial Code; and
(4) 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.
SECTION 13.03. Application of Trust Funds; Indemnification. (a)
Subject to the provisions of Section 13.04, all money and Government Obligations
deposited with the Trustee pursuant to Section 13.01 or 13.02 and all money
received by the Trustee in respect of Government Obligations deposited with the
Trustee, shall be held in trust and applied by it, in accordance with the
provisions of the Debt Securities and this Indenture, to the payment, either
directly or through any paying agent (including the Company acting as its own
paying agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
and Government Obligations have been deposited with or received by the Trustee
as contemplated by Section 13.01 or 13.02.
(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 13.01 or 13.02 or the interest and principal
received in respect of such obligations, other than any such tax, fee or other
charge payable by or on behalf of Holders. The Company shall be entitled to
prompt notice of an assessment or the commencement of any proceeding for which
indemnification may be sought hereunder and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such
proceeding.
(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 13.01 or 13.02 which, in the opinion of a nationally-recognized firm
of independent public accountants expressed in a written certification thereof
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.
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(d) If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 13.02 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities, if any, of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 13.02 until such time as the Trustee is permitted to apply all such
money or Government Obligations in accordance with Section 13.02; provided,
however, that if the Company has made any payment of interest on or principal of
(and premium, if any) on any Debt Securities, if any, of such series because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such series of Debt Securities, if any, to receive such
payment from the money or Government Obligations held by the Trustee.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any paying agent for payment of the principal of and
premium, if any, or interest on Debt Securities and not applied but remaining
unclaimed by the Holders of Debt Securities for two years after the date upon
which the principal of and premium, if any, or interest on such Debt Securities,
as the case may be, shall have become due and payable, shall be repaid to the
Company by the Trustee or such paying agent on demand; and the Holder of any of
the Debt Securities entitled to receive such payment shall thereafter look only
to the Company for any payment thereof.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Debt Securities Solely Corporate
Obligations. No recourse under or upon any obligation, covenant or agreement of
this Indenture, any supplemental indenture, or of any Debt Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, director or employee, as such, past, present
or future, of the Company or any Subsidiary or of any predecessor or successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers, directors or employees, as such, of the
Company or of any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture, or in any
of the Debt Securities or implied thereby;
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and that any and all such personal liability, either at common law or in equity
or by constitution or statute of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Debt Securities or implied thereby, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Successors of the Company. All
of the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of
Debt Securities. Nothing in this Indenture or in the Debt Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any agent of the Trustee or the
Company under this Indenture and the Holders of the Debt Securities, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being, subject to the provisions of Articles Twelve
and Fourteen, for the sole benefit of the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
Securities.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Debt Securities on the Company may be
given or served by being deposited, registered or certified mail postage
prepaid, in a post office letter box in the United States addressed (until
another address is filed by the Company with the Trustee) to the Company, 0000
Xxxxx Xxxxx Xxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Secretary. Any
notice, direction, request or demand by any Holder of a Debt Security or the
Company to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the principal office
of the Trustee, addressed to the attention of its Corporate Trust Department.
Any notice, report or other instrument required by any of the provisions of this
Indenture to be given by the Trustee to the Holders of Debt Securities of any or
all series shall be deemed to have been sufficiently given, for all purposes,
when mailed by first class mail.
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SECTION 15.04. New York Contract. This Indenture and the Debt
Securities shall for all purposes be construed in accordance with and governed
by the laws of the State of New York.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
Upon any Company request to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenant, compliance with which constitutes a condition precedent) 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 have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 15.06. Legal Holidays. In any case where the date of
maturity of interest on or principal of or premium, if any, on any series of
Debt Securities or the date fixed for redemption of any Debt Security or Debt
Securities will be a legal holiday or a day on which banking institutions are
legally authorized or obligated to close in Delaware or any other location where
a paying agent appointed pursuant to Section 5.02 is located, then payment of
such interest on or principal of and premium, if any, on such Debt Securities
need not be made by such paying agent on such date but may be made by such
paying agent on the next succeeding business day that is not a day in such
location that is either a legal holiday or a day on which banking institutions
are legally authorized or obligated to close, with the same force and effect as
if made on such date of maturity or the date fixed for redemption and no
interest shall accrue for the period from and after such prior date.
SECTION 15.07. Trust Indenture Act of 1939 to Control. If any
provision hereof limits, qualifies or conflicts with the duties imposed by any
of Sections 310 through 317 of the Trust Indenture Act of 1939, by the operation
of Section 318(c) thereof, such imposed duties shall control, except as, and to
the extent, expressly excluded from this
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Indenture, as permitted by the Trust Indenture Act of 1939. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act of
1939 that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 15.08. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 15.09. Determination of Principal Amount. In determining
whether the Holders of the requisite principal amount of Outstanding Debt
Securities of any series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, (i) the principal amount of
an Original Issue Discount Debt Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 7.01, (ii) the
principal amount of any Debt Securities denominated in a Foreign Currency that
shall be deemed to be Outstanding for such purposes shall be determined by
converting the Foreign Currency into Dollars at the Market Exchange Rate as of
the date of such determination and (iii) the principal amount of any Indexed
Debt Security that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal face amount of such Indexed Debt Security at
original issuance, unless otherwise provided in or pursuant to this Indenture.
SECTION 15.10. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original and
such counterparts shall together constitute but one and the same instrument.
Chase Manhattan Bank Delaware hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
ARTICLE SIXTEEN.
SUBORDINATION OF DEBT SECURITIES.
SECTION 16.01. Debt Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Debt Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Debt Securities and the payment of any and all amounts
payable in respect of each and all of the Debt Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of Senior Indebtedness, whether outstanding
on the date of this Indenture or thereafter incurred, assumed or guaranteed.
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In the event (a) of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
a bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which complies with the
requirements of Article Twelve, or (b) that a default shall have occurred and be
continuing with respect to the payment of any amount payable in respect of any
Senior Indebtedness, or (c) that the principal of the Debt Securities of any
Series shall have been declared due and payable pursuant to Section 7.01 and
such declaration shall not have been rescinded and annulled as provided in
Section 7.01, then:
(1) in a circumstance described in the foregoing clause (a) or
(b) the holders of all Senior Indebtedness, and in the circumstance
described in the foregoing clause (c) the holders of all Senior
Indebtedness outstanding at the time the principal of such Debt
Securities (or in the case of Original Issue Discount Debt Securities,
such portion of the principal amount) shall have been so declared due
and payable, shall first be entitled to receive payment of the full
amount due thereon, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the Debt
Securities are entitled to receive any payment in respect of the
indebtedness evidenced by the Debt Securities;
(2) any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities (other
than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with
respect to the Debt Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment),
to which the Holders of any of the Debt Securities would be entitled
except for the provisions of this Article shall be paid or delivered
by the person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instrument evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held
or represented by each, to the extent
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necessary to make payment in full of all Senior Indebtedness remaining
unpaid after giving effect to any concurrent payment or distribution
(or provision therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders of the
indebtedness evidenced by the Debt Securities under this Indenture;
and
(3) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article with respect to the Debt
Securities, to the payment of all Senior Indebtedness, provided that
the rights of the holders of Senior Indebtedness are not altered by
such reorganization or readjustment), shall be received by the Holders
of any of the Debt Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision therefor) to
the holders of such Senior Indebtedness.
SECTION 16.02. Subrogation. Subject to the payment in full of all
Senior Indebtedness to which the indebtedness evidenced by the Debt Securities
is in the circumstances subordinated as provided in Section 16.01, the Holders
of the Debt Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Debt Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Debt Securities, no such payment or distribution made to the
holders of such Senior Indebtedness by virtue of this Article which otherwise
would have been made to the Holders of the Debt Securities shall be deemed to be
a payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Debt
Securities, on the one hand, and the holders of Senior Indebtedness.
SECTION 16.03. Obligation of the Company Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Debt
Securities is intended
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to or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Debt Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Debt Securities the principal of and interest on and any additional amounts
owing in respect of the Debt Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders of the Debt Securities and creditors of the
Company other than the holders of Senior Indebtedness nor shall anything herein
or therein prevent the Trustee or the Holder of any Debt Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Debt Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the Debt
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 16.04. Payments on Debt Securities Permitted. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the Debt
Securities, shall affect the obligation of the Company to make, or prevent the
Company from making, payment of the principal of or interest on or any
additional amounts owing in respect of the Debt Securities in accordance with
the provisions hereof and thereof, except as otherwise provided in this Article.
SECTION 16.05. Effectuation of Subordination by Trustee. Each Holder
of Debt Securities, by his acceptance thereof, authorizes and directs the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney in fact for any and all such purposes.
SECTION 16.06. Knowledge of Trustee. Notwithstanding the provisions
of this Article or any other provisions of this Indenture, the Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee, or the taking
of any other action by the Trustee, unless and until the Trustee shall have
received written notice thereof from the
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Company, any Holder of Debt Securities, any paying or conversion agent of the
Company or the holder or representative of any class of Senior Indebtedness;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which, by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of or interest on,
or additional amounts owing in respect of, any Debt Security) then, anything
herein contained to the contrary notwithstanding, the Trustee shall have all
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it during or after such three Business Day
period.
SECTION 16.07. Trustee May Hold Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the TIA or elsewhere in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments
to, the Trustee (under or pursuant to Section 8.06) to Senior Indebtedness.
SECTION 16.08. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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IN WITNESS WHEREOF, XXXXXXX CONTROLS, INC. has caused this Indenture
to be signed and acknowledged by its President and either its Chief Financial
Officer or its Treasurer, and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary or an Assistant Secretary, and CHASE
MANHATTAN BANK DELAWARE has caused this Indenture to be signed and acknowledged
by one of its Senior Trust Officers, has caused its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or one of its Assistant
Secretaries, as of the day and year first written above.
XXXXXXX CONTROLS INC.
By
-----------------------------
Title
By
-----------------------------
Title
(CORPORATE SEAL)
ATTEST:
---------------------------------
CHASE MANHATTAN BANK
DELAWARE
By
------------------------------
(CORPORATE SEAL)
ATTEST:
---------------------------------
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STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On the ______ day of __________, 199_, before me personally came
and ____________________, to me known, who, being by me duly sworn,
did depose and say that they are _________________ and __________________
respectively, of XXXXXXX CONTROLS, INC., one of the corporations described in
and which executed the foregoing instrument; that they know the seal of said
corporation; that the seal affixed to said instrument bearing the name of said
corporation is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; that they signed their names thereto by
like authority; and said they acknowledged said instrument to be their free act
and deed and the free act and deed of said corporation.
WITNESS my hand and official seal the day and year first above written.
----------------------------------
Notary Public
(NOTARIAL SEAL) My commission expires:
-----------
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STATE OF DELAWARE
SS.:
COUNTY OF NEW CASTLE
On this _____ day of _______ , 199 , before me personally came
, to me known, who, being by me duly sworn, did depose and say that he
is a _________________________ of Chase Manhattan Bank Delaware, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
bearing the name of said corporation is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority; and said _________________________
acknowledged said instrument to be his free act and deed and the free act and
deed of said corporation.
WITNESS my hand and official seal the day and year first above written.
--------------------------------
Notary Public
(NOTARIAL SEAL) My commission expires:
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