EXHIBIT 10.5.1
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WHITE MOUNTAINS INSURANCE GROUP, LTD.
and FUND AMERICAN COMPANIES, INC.
and
BANK ONE, NATIONAL ASSOCIATION
Trustee
SENIOR INDENTURE
Dated as of May 19, 2003
Providing for Issuance of Securities in Series
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) ......................................................... 609
(a)(2) ......................................................... 609
(a)(3) ......................................................... N.A.
(a)(4) ......................................................... N.A.
(b) ......................................................... 608; 610
(c) ......................................................... N.A.
311(a) ......................................................... 613
(b) ......................................................... 613
(c) ......................................................... N.A.
312(a) ......................................................... 701
(b) ......................................................... 702
(c) ......................................................... 702
313(a) ......................................................... 703
(b)(1) ......................................................... N.A.
(b)(2) ......................................................... 703
(c) ......................................................... 703
(d) ......................................................... 703
314(a) ......................................................... 704
(b) ......................................................... N.A.
(c)(1) ......................................................... 102
(c)(2) ......................................................... 102
(c)(3) ......................................................... N.A.
(d) ......................................................... N.A.
(e) ......................................................... 102
315(a) ......................................................... 601
(b) ......................................................... 602
(c) ......................................................... 602
(d) ......................................................... 602
(e) ......................................................... 602
316(a)(last sentence)................................................. 502
(a)(1)(A) ......................................................... 512
(a)(1)(B) ......................................................... 502
(a)(2) ......................................................... N.A.
(b) ......................................................... 508
317(a)(1) ......................................................... 503
(a)(2) ......................................................... 504
(b) ......................................................... 1003
318(a) ......................................................... 107
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions ..............................................................................2
Section 102. Compliance Certificates and Opinions ....................................................12
Section 103. Form of Documents Delivered to Trustee ..................................................13
Section 104. Acts of Securityholders .................................................................14
Section 105. Notices, etc., to Trustee, Guarantor and Company ........................................16
Section 106. Notices to Securityholders; Waiver ......................................................16
Section 107. Conflict with Trust Indenture Act .......................................................17
Section 108. Effect of Headings and Table of Contents ................................................17
Section 109. Successors and Assigns ..................................................................17
Section 110. Separability Clause .....................................................................17
Section 111. Benefits of Indenture ...................................................................17
Section 112. Governing Law ...........................................................................17
Section 113. Counterparts ............................................................................17
Section 114. Judgment Currency .......................................................................18
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally .........................................................................18
Section 202. Forms of Securities .....................................................................19
Section 203. Form of Trustee's Certificate of Authentication .........................................20
Section 204. Securities Issuable in the Form of a Global Security ....................................20
Section 205. Form of Notation of Guarantee ...........................................................23
ARTICLE THREE
THE SECURITIES
Section 301. General Title; General Limitations; Issuable in Series; Terms of Particular Series ......23
Section 302. Denominations ...........................................................................27
Section 303. Execution, Authentication and Delivery and Dating .......................................28
Section 304. Temporary Securities ....................................................................30
Section 305. Registration, Transfer and Exchange .....................................................30
Contents, p. 2
Section 306. Mutilated, Destroyed, Lost and Stolen Securities ........................................32
Section 307. Payment of Interest; Interest Rights Preserved ..........................................33
Section 308. Persons Deemed Owners ...................................................................35
Section 309. Cancellation ............................................................................35
Section 310. Computation of Interest .................................................................35
Section 311. Medium-term Securities ..................................................................36
Section 312. CUSIP Numbers ...........................................................................36
Section 313. Global Securities .......................................................................37
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONEYS
Section 401. Applicability of Article ................................................................39
Section 402. Satisfaction and Discharge of Indenture; Defeasance .....................................39
Section 403. Conditions of Defeasance ................................................................41
Section 404. Application of Trust Money ..............................................................42
Section 405. Repayment to Company or Guarantor .......................................................43
Section 406. Indemnity for U.S. Government Obligations ...............................................43
Section 407. Reinstatement ...........................................................................43
ARTICLE FIVE
REMEDIES
Section 501. Events of Default .......................................................................43
Section 502. Acceleration of Maturity; Rescission and Annulment ......................................47
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee .........................48
Section 504. Trustee May File Proofs of Claim ........................................................50
Section 505. Trustee May Enforce Claims Without Possession of Securities .............................51
Section 506. Application of Money Collected ..........................................................51
Section 507. Limitation on Suits .....................................................................52
Section 508. Unconditional Right of Securityholders to Receive Principal, Premium and Interest .......53
Section 509. Restoration of Rights and Remedies ......................................................53
Section 510. Rights and Remedies Cumulative ..........................................................53
Section 511. Delay or Omission Not Waiver ............................................................53
Section 512. Control by Securityholders ..............................................................54
Section 513. Waiver of Past Defaults .................................................................54
Contents, p. 3
Section 514. Undertaking for Costs ...................................................................55
Section 515. Waiver of Stay or Extension Laws ........................................................55
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities .....................................................55
Section 602. Notice of Defaults ......................................................................57
Section 603. Certain Rights of Trustee ...............................................................58
Section 604. Not Responsible for Recitals or Issuance of Securities ..................................59
Section 605. May Hold Securities .....................................................................59
Section 606. Money Held in Trust .....................................................................59
Section 607. Compensation and Reimbursement ..........................................................59
Section 608. Disqualification; Conflicting Interests .................................................60
Section 609. Corporate Trustee Required; Eligibility .................................................61
Section 610. Resignation and Removal; Appointment of Successor .......................................61
Section 611. Acceptance of Appointment by Successor ..................................................63
Section 612. Merger, Conversion, Consolidation or Succession to Business .............................64
Section 613. Preferential Collection of Claims Against Company .......................................65
Section 614. Appointment of Authenticating Agent .....................................................70
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE, GUARANTOR
AND COMPANY
Section 701. Company To Furnish Trustee Names and Addresses of Securityholders .......................72
Section 702. Preservation of Information; Communications to Securityholders ..........................73
Section 703. Reports by Trustee ......................................................................74
Section 704. Reports by Company and Guarantor ........................................................76
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, etc., only on Certain Terms ....................................77
Section 802. Successor Person Substituted for Company ................................................78
Contents, p. 4
Section 803. Successor Person Substituted for Guarantor ..............................................78
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Securityholders ..............................79
Section 902. Supplemental Indentures with Consent of Securityholders .................................80
Section 903. Execution of Supplemental Indentures ....................................................82
Section 904. Effect of Supplemental Indentures .......................................................82
Section 905. Conformity with Trust Indenture Act .....................................................82
Section 906. Reference in Securities to Supplemental Indentures ......................................82
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest .............................................83
Section 1002. Maintenance of Office or Agency ........................................................83
Section 1003. Money for Security Payments to be Held in Trust ........................................83
Section 1004. Statement as to Compliance .............................................................86
Section 1005. Corporate Existence ....................................................................86
Section 1006. Limitation on Liens ....................................................................86
Section 1007. Limitation on Sale and Leaseback Transactions ..........................................87
Section 1008. Waiver of Certain Covenants ............................................................88
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article ...............................................................88
Section 1102. Election to Redeem; Notice to Trustee ..................................................89
Section 1103. Selection by Trustee of Securities to Be Redeemed ......................................89
Section 1104. Notice of Redemption ...................................................................90
Section 1105. Deposit of Redemption Price ............................................................91
Section 1106. Securities Payable on Redemption Date ..................................................91
Section 1107. Securities Redeemed in Part ............................................................91
Section 1108. Provisions with Respect to any Sinking Funds ...........................................92
Contents, p. 5
ARTICLE TWELVE
GUARANTEE OF SECURITIES
Section 1201. Guarantee ..............................................................................93
Section 1202. Execution of Notations of Guarantee ....................................................95
SENIOR INDENTURE (this "Indenture") between WHITE MOUNTAINS
INSURANCE GROUP, LTD. a company existing under the laws of
Bermuda (the "Guarantor") having its principal office at 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000-0000, FUND AMERICAN
COMPANIES, INC., a Delaware corporation (the "Company") having
its principal office at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, and BANK ONE, NATIONAL ASSOCIATION, trustee
(hereinafter called the "Trustee"), is made and entered into as
of this 19th day of May, 2003.
Recitals of the Company and the Guarantor
The Company and the Guarantor each has duly authorized the execution
and delivery of this Indenture to provide for in the case of the Company, the
issuance of, and in the case of the Guarantor, the guarantee of, the Company
debentures, notes, bonds or other evidences of indebtedness, to be issued in one
or more fully registered series.
All things necessary to make this Indenture a valid agreement of each
of the Company and the Guarantor, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. DEFINITIONS. For all purposes of this Indenture and of
any indenture supplemental hereto, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation;
(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation".
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Security-holder, has the meaning
specified in Section 104.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Bank Debt" means all Obligations pursuant to the Amended and Restated
Credit Agreement dated as of October 30, 2002, among Fund American Enterprises
Holdings, Inc., the Company, as Borrower, the several Lenders from time to time
parties thereto, Xxxxxx Brothers Inc., as Arranger, Fleet National Bank, as
Syndication Agent, Bank of America, N.A. and Bank One, NA, as Co-Documentation
Agents, and Xxxxxx Commercial Paper Inc., as Administrative Agent, as such
Amended and Restated Credit Agreement may be extended, renewed, restated,
supplemented or otherwise modified (in whole or in part, and without limitation
as to amount, terms, conditions, covenants and other provisions) from time to
time, and any agreement or indenture (and related document or instrument)
governing Debt incurred to refinance, in whole or in part, the borrowings and
commitments then outstanding under such Amended and Restated Credit Agreement.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or
other day on which banking institutions in the pertinent Place or Places of
Payment are authorized or required by law or executive order to be closed.
4
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor replaces it and, thereafter,
"Company" shall mean the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the Securities.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, except that with respect to the
presentation of Securities for payment or for registration of transfer and
exchange, such term shall mean the office or the agency of the Trustee in said
city at which at any particular time its corporate agency business shall be
conducted, which office at the date hereof is located at 00 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxx Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 204 or 301, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company,
New York,
New
York, or any successor thereto registered as a clearing
5
agency under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation.
"Event of Default" has the meaning specified in Article Five.
"Global Security" means with respect to any series of Securities
issued hereunder, a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Guarantee" means the irrevocable and unconditional guarantee by the
Guarantor of any Security of any series of the Company authenticated and
delivered pursuant to Article Twelve.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor replaces it and, thereafter,
"Guarantor" shall mean the successor.
"Guarantor Board of Directors" means either the board of directors of
the Guarantor or any duly authorized committee of that board.
"Guarantor's Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Guarantor to have been duly
adopted by the Guarantor Board of Directors.
"Guarantor Request", "Guarantor Order", "Guarantor Consent" means,
respectively, a written request, order or consent signed in the name of the
Guarantor by its Chairman of the Board, President or a Vice President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
6
"Holder", when used with respect to any Security, means a
Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Lien" means any mortgage, pledge, security interest, encumbrance,
charge or security interest of any kind.
"Maturity", when used with respect to any Securities, means the date
on which the principal of any such Security becomes due and payable as therein
or herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Obligations" means, with respect to any Bank Debt, all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements and other amounts payable pursuant to the documentation governing
or relating to such Bank Debt, including security agreements, pledge agreements,
mortgages, guarantees and any similar agreements or instruments.
"Officers' Certificate" means, with respect to the Company or the
Guarantor, a certificate signed by the Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company or
the Guarantor, as the case may be, and delivered to the Trustee. Wherever this
Indenture requires that an Officers' Certificate be signed also by an engineer
or an accountant or other expert, such engineer, accountant or other expert
(except as otherwise
7
expressly provided in this Indenture) may be in the employ of the Company or the
Guarantor, as the case may be, and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
of counsel to the Company or the Guarantor. Such counsel shall be acceptable to
the Trustee, whose acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof, and (ii) any
other Security deemed an Original Issue Discount Security for United States
Federal income tax purposes.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
306 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding
obligation of the Company).
8
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of any Original
Issue Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of the date of
the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer assigned to the corporate trust department of the Trustee knows to be
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act as owner with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Liens" means (i) any Lien upon Property to secure any part
of the cost of development, construction, alteration, repair or improvement of
such Property, or Debt incurred to finance such cost; (ii) any extension,
renewal or replacement, in whole or in part, of any Lien referred to in the
foregoing clause (i); (iii) any Lien relating to a sale and leaseback
transaction permitted by Section 1007 (other than by operation of this clause
(iii) of this definition); (iv) any Lien in favor of the Company, the Guarantor
or any Subsidiary granted by the Company, the Guarantor or any Subsidiary in
order to secure any intercompany obligations; (v) mechanic's, materialmen's,
carriers' or other like Liens arising in the ordinary course of business
(including construction of facilities) in respect of obligations which are not
due or which are being contested in good faith: (vi) any Lien
9
arising in connection with any legal proceeding which is being contested; (vii)
Liens for taxes not yet subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings; (viii) minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred in
connection with Debt and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in the
operation of the business of such Person; (ix) pledges or deposits under
workers' compensation laws, unemployment insurance laws or similar social
security legislation; (x) any deposit to secure performance of letters of
credit, bids, leases, statutory obligations, surety and appeal bonds,
performance bonds or other obligations of a like nature in the ordinary course
of business; (xi) any interest or title of a lessor under any lease entered into
in the ordinary course of business; (xii) Liens on assets of any Subsidiary
which is required to be licensed as an insurer or reinsurer (or any Subsidiary
of such Subsidiary) securing (a) Debt of any such Subsidiary to any other such
Subsidiary, (b) short-term Debt incurred to provide short-term liquidity to
facilitate claims payments in the event of catastrophe, (c) Debt incurred in the
ordinary course of its business or in securing insurance-related obligations
(that do not constitute Debt) and letters of credit issued for the account of
any such Subsidiary in the ordinary course of its business or in securing
insurance-related obligations (that do not constitute Debt) or (d)
insurance-related obligations (that do not constitute Debt); and (xiii)
additional Liens to secure Bank Debt so long as the amount of such Bank Debt
outstanding from time to time does not exceed $175 million.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means with respect to any series of Securities
issued hereunder the city or political
10
subdivision so designated with respect to the series of Securities in question
in accordance with the provisions of Section 301.
"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Property" means any property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be
repaid, means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other
11
evidences of indebtedness, as the case may be, of any series authenticated and
delivered from time to time under this Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Securityholder" means a Person in whose name a Security is registered
in the Security Register.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified in
such Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified Person means any corporation, limited
liability company, limited or general partnership, business trust or other
business entity at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by the specified Person or by one or
more of its Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed except as provided in Section 905.
"Trustee" means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
and include each Person who is then a Trustee hereunder.
If at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
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"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Vice President" when used with respect to the Guarantor, the Company
or the Trustee means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president", including,
without limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any Person, means stock of
any class or classes (however designated) having by the terms thereof ordinary
voting power to elect a majority of the members of the board of directors (or
other governing body) of such Person other than stock having such power only by
reason of the happening of a contingency.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as applicable, shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such Counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1004) shall include
13
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to the other matters, and any such Person may certify or give an opinion as
to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
14
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. ACTS OF SECURITYHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Company or the Guarantor or both of them. If any Securities are denominated in
coin or currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of Securities
have taken any action as herein described, the principal amount of such
Securities shall be deemed to be that amount of United States dollars that could
be obtained for such principal amount on the basis of the spot rate of exchange
into United States dollars for the currency in which such Securities are
denominated (as evidenced to the Trustee by an Officers' Certificate) as of the
date the taking of such action by the Holders of such requisite principal amount
is evidenced to the Trustee as provided in the immediately preceding sentence.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee, the Guarantor and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
15
such execution is by an officer of a corporation or a member of a partnership,
on behalf of such corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company or the Guarantor shall solicit from the Holders
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company or the Guarantor, as the case may be, may, at its option, by
Board Resolution or Guarantor's Board Resolution, as applicable, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
the Company or the Guarantor, as the case may be, shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Securities Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Securities Outstanding shall be computed as of the record date; provided that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the Trustee
or the Company or the Guarantor in reliance thereon whether or not notation of
such action is made upon such Security.
16
Section 105. NOTICES, ETC., TO TRUSTEE, GUARANTOR AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company or the Guarantor by the Trustee or by any
Securityholder shall be sufficient for every purpose hereunder (except as
provided in Section 501(4) or (5) or, in the case of a request for
repayment, as specified in the Security carrying the right to repayment) if
in writing and mailed, first-class postage prepaid, to the Company or the
Guarantor, as the case may be, addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company or the Guarantor, as the case may be.
Section 106. NOTICES TO SECURITYHOLDERS; WAIVER. Where this Indenture
or any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Securityholder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder
shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Securityholders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
17
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it shall be impractical to mail
notice of any event to any Securityholder when such notice is required to be
given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee, the Guarantor and the
Company shall be deemed to be a sufficient giving of such notice.
Section 107. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of Sections
310 to 317, inclusive, of the Trust Indenture Act through the operation of
Section 318(c) thereof, such imposed duties shall control.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 109. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by each of the Company and the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 110. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111. BENEFITS OF INDENTURE. Nothing in this Indenture or in
any Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Security Registrar and the Holders of Securities (or such of
them as may be affected thereby), any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 112. GOVERNING LAW. This Indenture shall be construed in
accordance with and governed by the laws of the State of
New York.
Section 113. COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such
18
counterparts shall together constitute but one and the same instrument.
Section 114. JUDGMENT CURRENCY. The Company and the Guarantor each
agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of, or premium or
interest, if any, on the Securities of any series (the "Required Currency") into
a currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in
New York City the Required
Currency with the Judgment Currency on the Banking Day (as defined below)
immediately preceding the date on which final unappealable judgment is given and
(b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "Banking Day" means any day except a Saturday,
Sunday or a legal holiday in
New York City or a day on which banking
institutions in
New York City are authorized or required by law or executive
order to close.
ARTICLE TWO
SECURITY FORMS
Section 201. FORMS GENERALLY. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be required to comply with applicable laws or regulations or with the
19
rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities, subject,
with respect to the Securities of any series, to the rules of any securities
exchange on which such Securities are listed.
Section 202. FORMS OF SECURITIES. Each Security shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved thereby or, if a Board
Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.
Each Security shall bear a notation of Guarantee in substantially the
form set forth in Section 205. Notwithstanding the foregoing, the notation of
Guarantee to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
form thereof referred to above as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers
20
delivering the same, in each case as evidenced by such delivery.
Section 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
form of Trustee's Certificate of Authentication for any Security issued pursuant
to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One, National
Association
as Trustee,
Dated: By:
------------------------ ----------------------------
Authorized Signatory
Section 204. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Sections 202 and 301 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 303 and the Company
Request delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
a Company Request, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, (iii) shall be delivered by
the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or
21
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such 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 individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Request
for the authentication and delivery of individual Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of
22
such Global Security or Securities representing such series or portion
thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202 and
301 with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities
of such series of like tenor and terms in definitive form on such terms
as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent shall authenticate
and deliver, without service charge, (1) to each Person specified by such
Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (2) to such Depositary a
new Global 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 Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(iv) 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 deliver individual Securities in definitive registered
form in authorized denominations. Upon the exchange of the entire
principal amount of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Security
Registrar. The Trustee or the Security Registrar shall deliver such
Securities to the Persons in whose names such Securities are so
registered.
23
Section 205. FORM OF NOTATION OF GUARANTEE. The form of notation of
Guarantee to be endorsed on any Security issued pursuant to this Indenture shall
be substantially as follows:
NOTATION OF GUARANTEE
White Mountains Insurance Group, Ltd., a company existing under the
law of Bermuda (the "Guarantor", which term includes any successor thereto under
the Indenture (the "Indenture") referred to in the Security on which this
notation is endorsed) has unconditionally guaranteed, pursuant to the terms of
the Guarantee contained in Article Twelve of the Indenture, the due and punctual
payment of the principal of and any premium and interest on this Security, when
and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption, early repayment or otherwise,
in accordance with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article Twelve of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this notation of
the Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
WHITE MOUNTAINS INSURANCE GROUP, LTD.
By
----------------------------------------
Name:
Title:
ARTICLE THREE
THE SECURITIES
Section 301. GENERAL TITLE; GENERAL LIMITATIONS; ISSUABLE IN SERIES;
TERMS OF PARTICULAR SERIES. The
24
aggregate principal amount of Securities which may be authenticated and
delivered and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series 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 of the authentication and delivery or Stated Maturity of the
Securities of such series.
Each series of Securities shall be created either by or pursuant to a
Board Resolution or by or pursuant to an indenture supplemental hereto. The
Securities of each such series may bear such date or dates, be payable at such
place or places, have such Stated Maturity or Maturities, be issuable at such
premium over or discount from their face value, bear interest at such rate or
rates (which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at
the option of the Holders thereof, for or into new Securities of a
different series or other securities or other property of the Company, the
Guarantor or another Person, including shares of common stock, preferred
stock, indebtedness or securities of any kind of the Company, the
Guarantor, any Subsidiary of the Company or of the Guarantor or of any
other Person or securities directly or indirectly convertible into or
exchangeable for any such securities;
25
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including European Currency Units) in
which the Securities of such series shall be denominated and in which
payments of principal of, and any premium and interest on, such Securities
shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
Company or a holder thereof, in a currency or currencies or units based on
or related to currencies (including European Currency Units) other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(5) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of such series may be determined
with reference to an index based on (i) a currency or currencies or units
based on or related to currencies (including European Currency Units) other
than that in which the Securities are stated to be payable, (ii) changes in
the price of one or more other securities or groups or indexes of
securities or (iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the foregoing, the
manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that
series is to be limited, such limitations, and the maturity date of the
principal amount of the Securities of that series (which may be fixed or
extendible), and the rate or rates (which may be fixed or floating) per
annum at which the Securities of the series will bear interest, if any, or
the method of determining such rate or rates, and the payment dates and
record dates relating to such interest payments;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same
aggregate
26
principal amount of a different authorized kind or different authorized
denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the provisions
of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the percentage of their principal amount at which such securities
will be issued, and the portion of the principal amount of securities of
the series, if other than the total principal amount thereof, which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable
to the Securities of such series (including a provision making any Event of
Default set forth herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making
any Section of such Article inapplicable to the Securities of such series);
(12) the applicability of Section 402(b) of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Global Securities, the terms and
conditions, if any, upon which such Global Security or Global Securities
may be exchanged in whole or in part
27
for other individual Securities; and the Depositary for such Global
Security or Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company and the Guarantor, including without
limitation, the Securities of any other series; and
(15) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture, all upon such terms as may be
determined in or pursuant to a Board Resolution or in or pursuant to a
supplemental indenture with respect to such series. All Securities of the
same series shall be substantially identical in tenor and effect, except as
to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such series.
The Securities of each series shall be distinguished from the Securities of each
other series in such manner, reasonably satisfactory to the Trustee, as the
Board of Directors may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
28
Section 303. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, one of its Vice Presidents or its Treasurer. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of
medium-term Securities under Section 311, the manner of determining the
terms) of such Securities have been established in conformity with the
provisions of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the Company and,
assuming due authentication and
29
delivery by the Trustee, constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity) and
entitled to the benefits of this Indenture, equally and ratably with all
other Securities, if any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture with respect to that series of Securities have been
complied with, 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 and
legal principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an action at law
or in equity).
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any
30
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Section 304. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon receipt
of the documents required by Section 303, together with a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment, without charge to the Holder; and
upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE. The Company shall
keep or cause to be kept a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities, or of
Securities of a particular series, and for transfers of Securities or of
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by
31
the Trustee at the office or agency to be maintained by the Company as provided
in Section 1002.
Subject to Section 204, upon surrender for transfer of any Security of
any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denominations, of a like
aggregate principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Securityholder making the exchange is
entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company and the Guarantor, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Securities, other than exchanges pursuant to Section 304 or 906
not involving any transfer.
32
The Company shall not be required (i) to issue, transfer or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer or exchange any
Security so selected for redemption in whole or in part, except for the portion
of such Security not so selected for redemption.
None of the Company, the Guarantor, the Trustee, any agent of the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The Company may at any time and from
time to time authorize any Person to act as Security Registrar in place of the
Trustee with respect to any series of Securities issued under this Indenture.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If (i)
any mutilated Security is surrendered to the Trustee, or the Company, the
Guarantor and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and (ii) there is delivered to the
Company, the Guarantor and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company, the Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security, a new Security of
like tenor, series, Stated Maturity and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
33
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and the Guarantor, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided with respect to such Security pursuant to Section 301,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security 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 his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be paid
by the Company or the Guarantor, at its election in each case, as provided in
Clause (1) or Clause (2) below:
(1) The Company or the Guarantor may elect to make payment of any
Defaulted Interest to the Persons in whose names any such Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company or the
34
Guarantor, as the case may be, shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and
the date of the proposed payment, and at the same time the Company or the
Guarantor, as the case may be, 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 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company or the Guarantor, as the case may be, of such Special
Record Date and, in the name and at the expense of the Company or the
Guarantor, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holder of each such Security at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company or the Guarantor may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Company or the Guarantor, as the case may be, to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
35
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS. The Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may treat the
Person in whose name any Security is registered in the Security Register as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Section 307) interest on, such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
Section 309. CANCELLATION. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already canceled, shall be promptly canceled by it. The
Company or the Guarantor may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. The
Trustee shall return all canceled Securities to the Company.
Section 310. COMPUTATION OF INTEREST. Unless otherwise provided as
contemplated in Section 301, interest
36
on the Securities shall be calculated on the basis of a 360-day year of twelve
30-day months.
Section 311. MEDIUM-TERM SECURITIES. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary for the Company to deliver to the Trustee
an Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 202, 301 and
303 at or prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate, Board Resolution or supplemental
indenture (any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine, consistent
with such Officers' Certificate, supplemental indenture or Board Resolution,
such terms and conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
Section 312. CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on
37
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
Section 313. GLOBAL SECURITIES. (a) Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated by the Company for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.
(b) Notwithstanding any other provision of this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act or
announces an intention permanently to cease business or does in fact do so or
(ii) there shall have occurred and be continuing an Event of Default with
respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation,
as provided in this Article Three. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, in each
case, as provided in Section 305, then either (i) such Global Security shall be
so surrendered for exchange or cancellation, as provided in this Article Three
or (ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Trustee, as Security Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a
38
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 305 and as otherwise
provided in this Article Three authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) to or upon the
order of, and registered in such names as may be directed by, the Depositary or
its authorized representative. Upon the request of the Trustee in connection
with the occurrence of any of the events specified in the preceding paragraph,
the Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its
authorized representative which is given or made pursuant to this Article Three
if such order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof, in which case such
Registered Security shall be authenticated and delivered in definitive, fully
registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Registered Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members and
such owners of beneficial interests in a Global Security will not be considered
the owners or holders thereof.
39
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
Section 401. APPLICABILITY OF ARTICLE. If, pursuant to Section 301,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are denominated and payable only in U.S. dollars
(except as provided pursuant to Section 301), then the provisions of this
Article Four relating to defeasance of Securities shall be applicable except as
otherwise specified pursuant to Section 301 for Securities of such series.
Defeasance provisions, if any, for Securities denominated in a currency other
than U.S. dollars may be specified pursuant to Section 301.
Section 402. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE. (a)
If at any time (i) the Company or the Guarantor shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
and delivered (other than (1) any Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 306 and (2) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company or the
Guarantor as provided in Section 405) or (ii) all Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount in the currency in
which such Securities are denominated (except as otherwise provided pursuant to
Section 301) sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and after
payment of all taxes or other charges and assessments in respect thereof payable
by the Trustee, to pay at maturity or upon redemption all Securities of such
series not theretofore delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to become due on such date of
maturity or redemption date, as
40
the case may be, no default with respect to the Securities has occurred and is
continuing on the date of such deposit, such deposit does not result in a breach
or violation of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company or the Guarantor is a party and the
Company delivers an Officers' Certificate and an Opinion of Counsel each stating
that such conditions have been complied with and if in either case the Company
or the Guarantor shall also pay or cause to be paid all other sums payable
hereunder by the Company or the Guarantor, then this Indenture shall cease to be
of further effect (except as to any surviving rights of registration of transfer
or exchange of such Securities herein expressly provided for and rights to
receive payments of principal of, and premium, if any, and interest on, such
Securities) with respect to the Securities of such series, and the Trustee, on
demand of the Company or the Guarantor, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 402(c), 403 and 407, the Company at any time
may terminate, with respect to Securities of a particular series, (i) all the
Company's and the Guarantor's obligations under the Securities of such series
and this Indenture with respect to the Securities of such series ("legal
defeasance option") or (ii) the Company's and the Guarantor's obligations with
respect to the Securities of such series under Section 1006 and 1007 and, to the
extent specified pursuant to Section 301, any other covenant applicable to the
Securities of such series ("covenant defeasance option"). The Company or the
Guarantor may exercise its legal defeasance option notwithstanding the prior
exercise of the covenant defeasance option.
If the Company exercises the legal defeasance option, payment of the
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises the covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in
Section 501(4) or (5) to the extent it relates to Section 1006 or 1007.
Upon satisfaction of the conditions set forth herein and upon request
of the Company or the Guarantor, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
41
(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's and the Guarantor's
obligations in Sections 305, 306, 405, 406, 407, 607, 701 and 1002 shall survive
until the Securities of the defeased series have been paid in full. Thereafter,
the Company's and the Guarantor's obligations in Sections 607, 405 and 406 shall
survive.
Section 403. CONDITIONS OF DEFEASANCE. The Company may exercise the
legal defeasance option or the covenant defeasance option with respect to
Securities of a particular series only if:
(1) the Company or the Guarantor irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for the payment of
principal of, and premium, if any, and interest on, the Securities of such
series to maturity or redemption, as the case may be;
(2) the Company or the Guarantor delivers to the Trustee a
certificate from a nationally recognized firm of independent public
accountants expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash
at such times and in such amounts as will be sufficient to pay the
principal, premium, if any, and interest when due on all the Securities of
such series to maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 501(5) or (6) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company or the Guarantor;
(6) the Company or the Guarantor delivers to the Trustee an Opinion
of Counsel to the effect that the
42
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940;
(7) in the event of the legal defeasance option, the Company or the
Guarantor shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders
of Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred; and
(9) the Company or the Guarantor delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities of such series
as contemplated by this Article Four have been complied with.
Before or after a deposit, the Company or the Guarantor may make
arrangements satisfactory to the Trustee for the redemption of Securities of
such series at a future date in accordance with Article Eleven.
Section 404. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article Four. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment
43
of principal of, and premium, if any, and interest on, the Securities of the
defeased series.
Section 405. REPAYMENT TO COMPANY OR GUARANTOR. The Trustee and any
paying agent shall promptly turn over to the Company or the Guarantor upon
request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company or the Guarantor upon request any money
held by them for the payment of principal, premium or interest that remains
unclaimed for two years, and, thereafter, Holders entitled to such money must
look to the Company or the Guarantor for payment as general creditors and all
liability of the Trustee or such paying agent with respect to such money shall
thereupon cease.
Section 406. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
and the Guarantor (without duplication) shall pay and shall indemnify the
Trustee and the Holders against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
Section 407. REINSTATEMENT. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article Four by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's and the Guarantor's
obligations under this Indenture and the Securities of the defeased series shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article Four until such time as the Trustee or any paying agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article Four.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT. "Event of Default", wherever used
herein, means with respect to any series of Securities any one of the following
events (whatever the reason for such Event of Default and whether
44
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 creating such series of Securities or in
the form of Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture in respect of
the Securities of such series (other than a covenant or warranty in respect
of the Securities of such series a default in the performance of which or
the breach of which is elsewhere in this Section specifically dealt with),
all of such covenants and warranties in the Indenture which are not
expressly stated to be for the benefit of a particular series of Securities
being deemed in respect of the Securities of all series for this purpose,
and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee or to the Company, the Guarantor and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) with respect to any series of Securities issued or guaranteed by
the Guarantor, the Guarantor's consolidation or amalgamation with or merger
into any
45
other Person or conveyance or transfer of its properties and assets
substantially as an entirety to any Person, unless:
(A) the Person formed by such consolidation or amalgamation or
into which the Guarantor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Guarantor
substantially as an entirety shall be a corporation or limited
liability company organized and existing under the laws of the United
States of America, any State thereof, the District of Columbia or
Bermuda, and shall expressly assume, by an indenture supplemental
hereto, executed by the successor Person and the Company and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Guarantor to be performed or
observed;
(B) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(C) either the Guarantor or the successor Person has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, amalgamation, merger, conveyance or
transfer and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with,
and continuance of any failure to comply with the conditions set forth
under items (A), (B) or (C) of this paragraph (5) for a period of 90 days
after there has been given, by registered or certified mail, to the
Guarantor by the Trustee or to the Guarantor and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such failure to comply
46
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(6) the entry of an order for relief against the Company or the
Guarantor under the Federal Bankruptcy Code by a court having jurisdiction
in the premises or a decree or order by a court having jurisdiction in the
premises adjudging the Company or the Guarantor a bankrupt or insolvent
under any other applicable Federal, State or foreign law, or the entry of a
decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Guarantor under the Federal Bankruptcy Code or any other
applicable Federal, State or foreign law (other than a reorganization under
a foreign law that does not relate to insolvency), or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or the Guarantor or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(7) the consent by the Company or the Guarantor to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal, State or foreign
law (other than a reorganization under a foreign law that does not relate
to insolvency), or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or the Guarantor or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or the Guarantor in furtherance
of any such action; or
(8) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
47
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default described in paragraph (1), (2), (3), (4), (5) or (8) (if
the Event of Default under paragraph (4), (5) or (8) is with respect to less
than all series of Securities then Outstanding) of Section 501 occurs and is
continuing with respect to any series, then and in each and every such case,
unless the principal of all the 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 Securities of such series then Outstanding
hereunder (each such series acting as a separate class), by notice in writing to
the Company and the Guarantor (and to the Trustee if given by Holders), may
declare the principal amount (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Securities of such series then
Outstanding and all accrued interest 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 Securities of such series
contained to the contrary notwithstanding. If an Event of Default described in
paragraph (4), (5), (8) (if the Event of Default under paragraph (4), (5) or (8)
is with respect to all series of Securities then Outstanding), (6) or (7) of
Section 501 occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the Company and the Guarantor (and to the
Trustee if given by Holders), may declare the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities then
Outstanding and all accrued interest thereon, if any, 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 Securities
contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made
with respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as
48
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that payment of such interest is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
and
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company and the Guarantor each covenants that if
49
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the Company or the Guarantor, as the case may be,
will, upon demand of the Trustee, pay to it, for the benefit of the Holder of
any such Security (or the Holders of any such series in the case of Clause (3)
above), the whole amount then due and payable on any such Security (or on the
Securities of any such series in the case of Clause (3) above) for principal
(and premium, if any) and interest, with interest, to the extent that payment of
such interest shall be legally enforceable, upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at such rate or
rates as may be prescribed therefor by the terms of any such Security (or of
Securities of any such series in the case of Clause (3) above); and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due the Trustee under Section 607.
If the Company or the Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or the Guarantor or any other obligor
upon the Securities of such series and collect the money adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
the Guarantor or any other obligor upon such Securities, wherever situated.
50
If an Event of Default with respect to any series of 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 Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, Guarantor or any other obligor upon the
Securities or the property of the Company, Guarantor or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company or the Guarantor for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceedings
or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
and advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts due
the Trustee under Section 607) and of the Securityholders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of
51
such payments directly to the Securityholders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities of such
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities
52
for principal (and premium, if any) and interest, respectively.
THIRD: To the Company or the Guarantor or both, as they are entitled.
Section 507. LIMITATION ON SUITS. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series 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 Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
53
Section 508. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Guarantor, the Trustee
and the Securityholders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
54
Section 512. CONTROL BY SECURITYHOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
55
Section 514. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
Section 515. WAIVER OF STAY OR EXTENSION LAWS. The Company and the
Guarantor each covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company and the Guarantor each (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during
the continuance of an Event of Default with respect to any series of Securities,
56
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding
57
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
PROVIDED, HOWEVER, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and PROVIDED,
FURTHER, that in the case of any default of the character specified in Section
501(4) or (5) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
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Section 603. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided
in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order, or a Guarantor Request or Guarantor Order, as applicable, and any
resolution of the Board of Directors or the Guarantor Board of Directors may be
sufficiently evidenced by a Board Resolution or a Guarantor's Board Resolution,
as applicable;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
59
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company and the Guarantor, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company or the
Guarantor, as applicable, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company or the Guarantor of
Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Company or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar or such other agent.
Section 606. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or the
Guarantor.
Section 607. COMPENSATION AND REIMBURSEMENT. The Company and the
Guarantor (without duplication) agrees
(1) to pay to the Trustee from time to time as the parties shall
agree from time to time such
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compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company and
the Guarantor under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Securities.
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee for
the Securities of any series issued hereunder shall be subject to the provisions
of Section 310(b) of the Trust Indenture Act during the period of time provided
for therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture and every series of securities issued
under any other indentures if the requirements for such exclusion set forth in
section 310(b) of the Trust Indenture Act are met. Nothing herein shall prevent
the Trustee from filing with the Commission the application
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referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder with respect to each series of Securities,
which shall be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. 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, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company and the Guarantor.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of that series, delivered to the Trustee and to
the Company and the Guarantor. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the removed Trustee may petition
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any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608(a) with respect to any series of
Securities after written request therefor by the Company, by the Guarantor
or by any Securityholder who has been a bona fide Holder of a Security of
that series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company, by the Guarantor or by any such
Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution, or the Guarantor
by a Guarantor's Board Resolution, may remove the Trustee, with respect to the
series, or in the case of Clause (4), with respect to all series, or (ii)
subject to Section 514, any Securityholder who has been a bona fide Holder of a
Security of such series for at least 6 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 the series, or, in the case of Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of
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Securities. If, within one year after such resignation, removal or incapacity,
or the occurrence of such vacancy, a successor Trustee with respect to such
series of Securities shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company, the Guarantor and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company with respect to such series. If no successor
Trustee with respect to such series shall have been so appointed by the Company
or the Securityholders of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security of that series for at least 6 months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to any series and each appointment of a
successor Trustee with respect to any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities of that
series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company, the Guarantor and to the predecessor Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the predecessor Trustee with respect to any such
series; but, on request of the Company, the Guarantor or the successor Trustee,
such predecessor Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the
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predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 607. Upon request of any such successor
Trustee, the Company and the Guarantor shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the predecessor Trustee and each successor Trustee with respect to
the 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 predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not being succeeded shall continue to be vested
in the predecessor 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.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under this
Article.
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any
65
of the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. (a)
Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within 3 months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and the
holders of other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such 3-month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such 3-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is
66
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such 3-month period and such property was received as
security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such 3-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
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If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, the Securityholders and the holders
of other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee and the Securityholders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee and the
Securityholders and the holders of other indenture securities in accordance with
the provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Securityholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of
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such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such 3-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such 3-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(ii) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such 3-month
period; and
(iii) such receipt of property or reduction of claim occurred
within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
69
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 days after delivery
of the goods or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by
70
documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 614. APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Securities remain Outstanding the Trustee, with the approval of the
Company, may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Company itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
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cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and, if other than the Company, to the Company.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee,
with the approval of the Company, may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Company from time to time)
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One, National
Association,
as Trustee
By:
-------------------------------------
As Authenticating Agent
Dated:_______________
By:
---------------------------------
Authorized Signatory
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY
TRUSTEE, GUARANTOR AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 30 days after each Regular Record
Date, in each year in such form as the Trustee may reasonably require, a list of
the names and addresses of the Holders of Securities of such series as of such
date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 30 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
SECURITYHOLDERS. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within 5 Business Days
after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Securityholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or to all
Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified
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in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within 5 days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securityholders, as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all Securityholders of such series
or all Securityholders, as the case may be, with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 702(b).
Section 703. REPORTS BY TRUSTEE. (a) The term "reporting date" as
used in this Section means May 15 of each year. Within 60 days after the
reporting date in each year, beginning in 2004, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear in the Security
Register, a brief report dated as of such reporting date with respect to any of
the following events which may have occurred during the 12 months preceding the
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date of such report (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of Securities of any series, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities of such series outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in a manner described in Section 613(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
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(b) The Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities of any series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this Subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 1/2 of 1% or
less of the principal amount of the Securities Outstanding of such series at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, and also with the Commission. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
Section 704. REPORTS BY COMPANY AND GUARANTOR. The Company and the
Guarantor each will:
(1) file with the Trustee, within 30 days after the Company or the
Guarantor is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company or the
Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; or, if neither
the Company nor the Guarantor is required to file information, documents or
reports pursuant to either of said Sections, then the Guarantor will file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities
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Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company or the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company or the Guarantor pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER,
CONVEYANCE OR TRANSFER
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate or amalgamate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or amalgamation or into
which the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation or limited liability company organized and
existing under the laws of the United States of America, any State thereof,
the District of Columbia or Bermuda, and shall expressly assume, by an
indenture supplemental hereto, executed by the successor Person and the
Guarantor and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and
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interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) either the Company or the successor Person has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, amalgamation, merger, conveyance or transfer and
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY. Upon any
consolidation, amalgamation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or
amalgamation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein. In the event
of any such conveyance or transfer, the Company as the predecessor corporation
may be dissolved, wound up or liquidated at any time thereafter.
Section 803. SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR. Upon any
consolidation, amalgamation or merger, or any conveyance or transfer of the
properties and assets of the Guarantor substantially as an entirety, whether or
not such event gives rise to an Event of Default under Section 501(5), the
successor Person formed by such consolidation or amalgamation or into which the
Guarantor is merged or to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Guarantor under this Indenture with the same effect as if such successor
Person had been named as the Guarantor herein. In the event of any such
conveyance or transfer, the Guarantor as the
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predecessor corporation may be dissolved, wound up or liquidated at any time
thereafter.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. Without the consent of the Holders of any Securities, the
Company, when authorized by a Board Resolution, the Guarantor, when authorized
by a Guarantor's Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
the Guarantor, and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities contained; or
(2) to add to the covenants of the Company or the Guarantor, or to
surrender any right or power herein conferred upon the Company or the
Guarantor, for the benefit of the Holders of the Securities of any or all
series (and if such covenants or the surrender of such right or power are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series); or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
Federal statute hereafter enacted; or
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(5) to establish any form of Security, as provided in Article Two,
and to provide for the issuance of any series of Securities as provided in
Article Three and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Securities of any series; or
(6) 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 Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well as
fully registered form.
No supplemental indenture for the purposes identified in Clauses (2),
(3), (5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture or indentures, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
the Guarantor, when authorized by a Guarantor's Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of the Securities of each such series under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture
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shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Maturity of the principal of, or the Stated Maturity
of any premium on, or any installment of interest on, any Security, or
reduce the principal amount thereof or the interest or any premium thereon,
or change the method of computing the amount of principal thereof or
interest thereon on any date or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity or the Stated Maturity, as the
case may be, thereof (or, in the case of redemption or repayment, on or
after the Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not (except to the extent required in
the case of a supplemental indenture entered into under Section 901(4) or
901(6)) be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. With
respect to each series of Securities, the Company will duly and punctually pay
the principal of (and premium, if any) and interest on such Securities in
accordance with their terms and this Indenture, and will duly comply with all
the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency in each Place of Payment where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the principal Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
The Guarantor will maintain an office or agency in each Place of
Payment where Securities to which the Guarantee applies may be presented or
surrendered for payment pursuant to the Guarantee and where notices and demands
to or upon the Guarantor in respect of the Guarantee and this Indenture may be
served. The Guarantor will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Guarantor shall fail to maintain any such office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders and demands may be made or served at the Principal Corporate Trust
Office of the Trustee, and the Guarantor hereby appoints the Trustee as its
agent to receive all such presentations, surrenders and demands.
Section 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its
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own Paying Agent for any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on, any of the
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any) or interest on, any Securities of such series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any such
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company or the Guarantor may at any time, for the purpose of
obtaining the satisfaction and discharge of
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this Indenture with respect to any series of Securities or for any other
purpose, pay, or by Company Order or Guarantor Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company, the Guarantor or such
Paying Agent in respect of each and every series of Securities as to which it
seeks to discharge this Indenture or, if for any other purpose, all sums so held
in trust by the Company or the Guarantor in respect of all Securities, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company, the Guarantor or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company or the Guarantor, in trust for the payment of the principal of
(and premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request (or
if deposited by the Guarantor, paid to the Guarantor upon Guarantor Request), or
(if then held by the Company or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company and the Guarantor for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease. The Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company and the Guarantor mail to the
Holders of the Securities as to which the money to be repaid was held in trust,
as their names and addresses appear in the Security Register, a notice that such
moneys remain unclaimed and that, after a date specified in the notice, which
shall not be less than 30 days from the date on which the notice was first
mailed to the Holders of the Securities as to which the money to be repaid was
held in trust, any unclaimed balance of such moneys then remaining will be paid
to the Company or the Guarantor, as the case may be, free of the trust formerly
impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one
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or more Persons to act as Paying Agent in addition to or in place of the Trustee
with respect to any series of Securities issued under this Indenture.
Section 1004. STATEMENT AS TO COMPLIANCE. The Company and the
Guarantor each will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company or
the Guarantor, as the case may be, stating that
(1) a review of the activities of the Company or the Guarantor, as
the case may be, during such year and of its performance under this
Indenture and under the terms of the Securities has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the Company
or the Guarantor, as the case may be, has complied with all conditions and
covenants under this Indenture through such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
For purposes of this Section 1004, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
Section 1005. CORPORATE EXISTENCE. Subject to Article Eight each of
the Company and the Guarantor will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence.
Section 1006. LIMITATION ON LIENS. So long as any Securities are
Outstanding, neither the Company nor the Guarantor will, nor will it permit any
of its respective Subsidiaries to create, assume, incur or suffer to exist (i)
any Lien upon any stock or indebtedness of any Subsidiary, whether owned on the
date of this Indenture or hereafter acquired, to secure any Debt of the Company,
the Guarantor or any other Person (other than the Securities), and (ii) any Lien
upon any other Property, whether owned or leased on the date of this Indenture,
or thereafter acquired, to secure any Debt of the Company, the Guarantor or any
other person (other than the Securities) without in
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any such case making effective provision whereby all of the Securities
Outstanding shall be directly secured equally and ratably with such Debt,
excluding, however, from the operation of the foregoing provisions of this
Section 1006 any Lien existing on the date of this Indenture or any Lien upon
stock or indebtedness or other Property of any Person existing at the time such
Person becomes a Subsidiary, or existing upon stock or indebtedness of a
Subsidiary or any other Property at the time of acquisition of such stock or
indebtedness or other Property, and any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in part of any such
Lien; PROVIDED, however, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement; and PROVIDED further, that such Lien shall be
limited to all or such part of the stock or indebtedness or other Property which
secured the Lien so extended, renewed or replaced.
Notwithstanding the foregoing, each of the Company and the Guarantor
may, and may permit any Subsidiary to, create, assume, incur or suffer to exist
(i) any Permitted Liens and (ii) any Lien upon any Property without equally and
ratably securing the Securities if the aggregate amount of all Debt then
outstanding secured by such Lien and all similar Liens does not exceed 15% of
the total consolidated stockholders' equity (including preferred stock) of the
Guarantor as shown on the audited consolidated balance sheet contained in the
latest annual report to stockholders of the Guarantor; PROVIDED that Debt
secured by Permitted Liens shall not be included in the amount of such secured
Debt.
Section 1007. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. So long
as any Securities are Outstanding neither the Company nor the Guarantor will,
nor will it permit any of its respective Subsidiaries to, enter into any
arrangement with any Person pursuant to which the Company, the Guarantor or any
Subsidiary leases any Property that has been or is to be sold or transferred by
the Company, the Guarantor or the Subsidiary to such Person (a "sale and
leaseback transaction") unless (i) the Company, the Guarantor or such Subsidiary
would be entitled to secure the Property to be leased (without equally and
ratably securing the Securities Outstanding) in an amount equal to the present
value of the lease payments with
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respect to the term of the lease remaining on the date as of which the amount is
being determined under the provisions described in Section 1006; (ii) the lease
is for a term, including renewals at the option of the lessee, of not more than
five years; (iii) the lease is between the Company, the Guarantor or a
Subsidiary or between Subsidiaries; and (iv) the lease is of Property executed
by the time of, or within 12 months after the latest of, the acquisition, the
completion of construction or improvement, or the commencement of commercial
operation of the Property.
Section 1008. WAIVER OF CERTAIN COVENANTS. The Company or the
Guarantor or both may omit in respect of any series of Securities, in any
particular instance, to comply with any covenant or condition set forth in
Section 1006, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Securities at the time Outstanding
of such series shall, by Act of such Securityholders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Guarantor and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the Securities
of any series, either by optional redemption, sinking or purchase fund or
analogous obligation or otherwise, by provision therefor in the form of Security
for such series established and approved pursuant to Section 202 and on such
terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made in accordance
with the terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
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Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Securities redeemable at the election of the Company
shall be evidenced by, or made pursuant to authority granted by, a Board
Resolution. In case of any redemption at the election of the Company of any
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may include provision
for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities so
selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple thereof,
and the principal amount which remains outstanding shall not be less than the
minimum authorized denomination for Securities of such series. If less than all
the Securities of unlike tenor and terms of a series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
Section 1104. NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification, including CUSIP Numbers (and, in the case of
partial redemption, the respective principal amounts) of the Securities to
be redeemed, from the Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment
of the Redemption Price, which shall be the office or agency of the Company
in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase fund,
or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Such notice shall be
deemed to have been given to each Holder if sent in accordance with Section 105
hereof.
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Section 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to 10:00 a.m.
on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money sufficient to
pay the Redemption Price of all the Securities which are to be redeemed on that
date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
Redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest. Upon surrender of such Securities for redemption in accordance with
the notice, such Securities shall be paid by the Company at the Redemption
Price. Installments of interest the Stated Maturity of which is on or prior to
the Redemption Date shall be payable to the Holders of such Securities
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security, or as otherwise
provided in such Security.
Section 1107. SECURITIES REDEEMED IN PART. Any Security which is to
be redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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Section 1108. PROVISIONS WITH RESPECT TO ANY SINKING FUNDS. Unless
the form or terms of any series of Securities shall provide otherwise, in lieu
of making all or any part of any mandatory sinking fund payment with respect to
such series of Securities in cash, the Company may at its option (1) deliver to
the Trustee for cancellation any Securities of such series theretofore acquired
by the Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee for cancellation or redeemed by the Company other than through the
mandatory sinking fund, and if it does so then (i) Securities so delivered or
credited shall be credited at the applicable sinking fund Redemption Price with
respect to Securities of such series, and (ii) on or before the 60th day next
preceding each sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers' Certificate
specifying the portions of such sinking fund payment to be satisfied by payment
of cash and by delivery or credit of Securities of such series acquired by the
Company or so redeemed, and (B) such Securities so acquired, to the extent not
previously surrendered. Such Officers' Certificate shall also state the basis
for such credit and that the Securities for which the Company elects to receive
credit have not been previously so credited and were not redeemed by the Company
through operation of the mandatory sinking fund, if any, provided with respect
to such Securities and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing. All Securities so
delivered to the Trustee shall be canceled by the Trustee and no Securities
shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest,
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if any, to the date fixed for redemption, with the effect provided in Section
1106. The Trustee shall select, in the manner provided in Section 1103, for
redemption on such sinking fund Redemption Date a sufficient principal amount of
Securities of such series to utilize that cash and shall thereupon cause notice
of redemption of the Securities of such series for the sinking fund to be given
in the manner provided in Section 1104 (and with the effect provided in Section
1106) for the redemption of Securities in part at the option of the Company. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to Securities
of any series held by the Trustee at the Maturity of Securities of such series,
and not held for the payment or redemption of particular Securities of such
series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with respect
to Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
ARTICLE TWELVE
GUARANTEE OF SECURITIES
Section 1201. GUARANTEE. The Guarantor hereby fully and
unconditionally guarantees to each Holder of a Security of each series issued by
the Company, authenticated and delivered by the Trustee, the due and punctual
payment of the principal (including any amount due in respect of any Original
Issue Discount Security) of and any premium and interest on such Security, and
the due and punctual payment of any sinking fund payments provided for pursuant
to the terms of such Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption, early repayment or otherwise, in accordance with the terms of
such Security and this Indenture. The
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Guarantor hereby agrees that in the event of an Event of Default its obligations
hereunder shall be as if it were a principal debtor and not merely a surety, and
shall be absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of any Security of any
series or this Indenture, any failure to enforce the provisions of any Security
of any series or this Indenture, any waiver, modification or indulgence granted
to the Company with respect thereto by the Holder of any Security of any series
or the Trustee, or any other circumstances which may otherwise constitute a
legal or equitable discharge of a surety or guarantor; provided, however, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of any
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Security issued under this Indenture and
all demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to such Security except by payment in full of the principal thereof
and any premium and interest thereon or as provided in Article Four or Section
802. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or the Guarantor any
amount paid by the Company or the Guarantor to the Trustee or such Holder, this
Guarantee to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees that, as between the Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, the
Maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Five hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby.
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The Guarantor also agrees, to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantor hereby waives any right of set off which the Guarantor
may have against the Holder of any Security in respect of any amounts which are
or may become payable by such Holder to the Company.
The Guarantor shall be subrogated to all rights of the Holders of any
series of Securities and the Trustee against the Company in respect of any
amounts paid to such Holders and the Trustee by the Guarantor pursuant to the
provisions of the Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce or to receive any payments arising out of or based upon,
such right of subrogation until the principal of, premium, if any, and interest,
if any, on all of the Securities of such series shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantees set forth in this Section 1201 by reason of his, her or its status as
such stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1201 shall not be valid or
become obligatory for any purpose with respect to any Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
Section 1202. EXECUTION OF NOTATIONS OF GUARANTEE. To evidence its
Guarantee to the Holders specified in Section 1201, the Guarantor hereby agrees
to execute the notation of the Guarantee in substantially the form set forth in
Section 205 to be endorsed on each Security authenticated and delivered by the
Trustee. The Guarantor hereby agrees that its Guarantee set forth in Section
1201 shall remain in full force and effect notwithstanding any failure to
endorse on any Security a notation of such Guarantee. Each such notation of
Guarantee shall be signed on behalf of the Guarantor by any proper officer of
the Guarantor prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the due
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authentication thereof by the Trustee hereunder, shall constitute due delivery
of the Guarantee on behalf of the Guarantor. Such signatures upon the notation
of the Guarantee may be manual or facsimile signatures of any present, past or
future proper officer of the Guarantor and may be imprinted or otherwise
reproduced below the notation of the Guarantee, and in case any such proper
officer of the Guarantor who shall have signed the notation of the Guarantee
shall cease to be such officer before the Security on which such notation is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated and delivered
or disposed of as though the person who signed the notation of the Guarantee had
not ceased to be such officer of the Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
WHITE MOUNTAINS INSURANCE GROUP, LTD.
by
/s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary
FUND AMERICAN COMPANIES, INC.,
by
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION
by
/s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
