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BANC ONE CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
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INDENTURE
Dated as of March 3, 1997
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SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS(1)
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ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.................................................... 2
"this Indenture" and certain other
terms..................................................... 2
"Act".......................................................... 3
"Affiliate".................................................... 3
"Authenticating Agent"......................................... 3
"Authorized Newspaper"......................................... 3
"Authorized Officer"........................................... 3
"Bearer Security".............................................. 3
"Board of Directors"........................................... 3
"Board Resolution"............................................. 3
"Business Day"................................................. 4
"CEDEL; CEDEL S.A."............................................ 4
"Commission"................................................... 4
"Common Depositary"............................................ 4
"Company"...................................................... 4
"Company Request" and "Company
Order".................................................... 4
"corporation".................................................. 4
"coupon"....................................................... 4
"Default"...................................................... 4
"Defaulted Interest"........................................... 4
"Depositary"................................................... 5
"Designated Currency".......................................... 5
"Dollar"....................................................... 5
"ECU".......................................................... 5
"Euroclear".................................................... 5
"European Communities"......................................... 5
"Event of Default"............................................. 5
"Exchange Act"................................................. 5
"Exchange Rate"................................................ 5
"Exchange Rate Officer's
Certificate".............................................. 5
"Existing Subordinated Indebtedness"........................... 6
"Foreign Currency"............................................. 6
"General Obligations".......................................... 6
"Global Exchange Rate"......................................... 7
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(1) This Table of Contents is not part of the Indenture.
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Contents, p. 2
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"Global Security"............................................ 7
"Holder"..................................................... 7
"interest"................................................... 7
"Interest Payment Date"...................................... 7
"Maturity"................................................... 7
"Officers' Certificate"...................................... 7
"Opinion of Counsel"......................................... 7
"Original Issue Discount Security"........................... 8
"Outstanding"................................................ 8
"Paying Agent"............................................... 9
"Person"..................................................... 9
"Place of Payment"........................................... 9
"Predecessor Security"....................................... 9
"Principal Corporate Trust Office"........................... 9
"Principal Paying Agent"..................................... 9
"Redemption Date"............................................ 10
"Redemption Price"........................................... 10
"Registered Security"........................................ 10
"Regular Record Date"........................................ 10
"Remarketing Entity"......................................... 10
"Repayment Date"............................................. 10
"Repayment Price"............................................ 10
"Responsible Officer"........................................ 10
"Security"; "Securities" .................................... 10
"Security Register".......................................... 11
"Security Registrar"......................................... 11
"Senior Indebtedness"........................................ 11
"Special Record Date"........................................ 11
"Stated Maturity"............................................ 11
"Subsidiary of the Company" or
"Subsidiary"............................................ 11
"Trustee".................................................... 12
"Trust Indenture Act" or "TIA"............................... 12
"United States".............................................. 12
"United States Alien"........................................ 12
"vice president"............................................. 12
SECTION 1.02. Compliance Certificates and Opinions......................... 12
SECTION 1.03. Form of Documents Delivered to
Trustee................................................. 13
SECTION 1.04. Acts of Holders.............................................. 14
SECTION 1.05. Notices, etc., to Trustee and
Company................................................. 17
SECTION 1.06. Notices to Holders; Waiver................................... 18
SECTION 1.07. Language of Notices, Etc..................................... 19
SECTION 1.08. Conflict with Trust Indenture Act............................ 19
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SECTION 1.09. Effect of Headings and Table of
Contents................................................ 20
SECTION 1.10. Successors and Assigns....................................... 20
SECTION 1.11. Separability Clause.......................................... 20
SECTION 1.12. Benefits of Indenture........................................ 20
SECTION 1.13. Legal Holidays............................................... 20
SECTION 1.14. Governing Law................................................ 21
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally............................................... 21
SECTION 2.02. Form of Securities........................................... 21
SECTION 2.03. Form of Trustee's Certificate of
Authentication.......................................... 22
SECTION 2.04. Global Securities............................................ 22
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms.............................................. 23
SECTION 3.02. Denominations................................................ 27
SECTION 3.03. Execution, Authentication, Delivery
and Dating.............................................. 27
SECTION 3.04. Temporary Securities......................................... 31
SECTION 3.05. Registration, Registration of
Transfer and Exchange................................... 35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.............................................. 40
SECTION 3.07. Payment of Interest; Interest
Rights Preserved........................................ 41
SECTION 3.08. Persons Deemed Owners........................................ 44
SECTION 3.09. Cancellation................................................. 44
SECTION 3.10. Computation of Interest...................................... 45
SECTION 3.11. Forms of Certification....................................... 45
SECTION 3.12. Judgments.................................................... 46
SECTION 3.13. CUSIP Numbers................................................ 46
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ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article..................................... 47
SECTION 4.02. Election to Redeem; Notice to
Trustee................................................. 47
SECTION 4.03. Selection by Security Registrar of
Securities to be Redeemed............................... 47
SECTION 4.04. Notice of Redemption......................................... 48
SECTION 4.05. Deposit of Redemption Price.................................. 49
SECTION 4.06. Securities Payable on Redemption
Date.................................................... 49
SECTION 4.07. Securities Redeemed in Part.................................. 50
SECTION 4.08. Redemption Suspended During Event of
Default................................................. 51
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and
Interest................................................ 51
SECTION 5.02. Maintenance of Office or Agency.............................. 52
SECTION 5.03. Money for Security Payments to Be
Held in Trust........................................... 54
SECTION 5.04. Additional Amounts........................................... 56
SECTION 5.05. Statement as to Compliance................................... 57
SECTION 5.06. Maintenance of Corporate Existence,
Rights and Franchises................................... 57
ARTICLE SIX
Holder's Lists and Reports
by Trustee and Company
SECTION 6.01. Company to Furnish Trustee Names
and Addresses of Holders................................ 58
SECTION 6.02. Preservation of Information;
Communications to Holders............................... 58
SECTION 6.03. Reports by Trustee........................................... 60
SECTION 6.04. Reports by Company........................................... 61
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ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default............................................ 62
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment........................................... 63
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.............................. 64
SECTION 7.04. Trustee May File Proofs of Claim............................. 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities................................ 66
SECTION 7.06. Application of Money Collected............................... 66
SECTION 7.07. Limitation on Suits.......................................... 67
SECTION 7.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest............................................ 69
SECTION 7.09. Restoration of Rights and Remedies........................... 69
SECTION 7.10. Rights and Remedies Cumulative............................... 69
SECTION 7.11. Delay or Omission Not Waiver................................. 70
SECTION 7.12. Control by Noteholders....................................... 70
SECTION 7.13. Waiver of Past Defaults...................................... 70
SECTION 7.14. Undertaking for Costs........................................ 71
SECTION 7.15. Waiver of Stay or Extension Laws............................. 71
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities.......................... 72
SECTION 8.02. Notice of Default............................................ 73
SECTION 8.03. Certain Rights of Trustee.................................... 74
SECTION 8.04. Not Responsible for Recitals or
Issuance of Notes....................................... 76
SECTION 8.05. May Hold Securities.......................................... 76
SECTION 8.06. Money Held in Trust.......................................... 76
SECTION 8.07. Compensation and Reimbursement............................... 76
SECTION 8.08. Disqualification; Conflicting
Interests............................................... 77
SECTION 8.09. Corporate Trustee Required;
Eligibility............................................. 77
SECTION 8.10. Resignation and Removal; Appointment
of Successor............................................ 78
SECTION 8.11. Acceptance of Appointment by
Successor............................................... 80
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SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of
Trustee................................................. 82
SECTION 8.13. Preferential Collection of Claims
against Company......................................... 82
SECTION 8.14. Appointment of Authenticating Agents......................... 82
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without
Consent of Holders...................................... 85
SECTION 9.02. Supplemental Indentures With
Consent of Holders...................................... 87
SECTION 9.03. Execution of Supplemental Indentures......................... 88
SECTION 9.04. Effect of Supplemental Indentures............................ 88
SECTION 9.05. Conformity with Trust Indenture Act.......................... 88
SECTION 9.06. Reference in Securities to
Supplemental Indentures................................. 89
SECTION 9.07. Subordination Unimpaired..................................... 89
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only
on Certain Terms........................................ 89
SECTION 10.02. Successor Corporation Substituted............................ 90
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of
Indenture............................................... 90
SECTION 11.02. Application of Trust Money................................... 92
SECTION 11.03. Reinstatement................................................ 92
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ARTICLE TWELVE
Immunity of Incorporations, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability........................ 93
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article................................... 93
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.............................. 94
SECTION 13.03. Redemption of Securities for
Sinking Fund.......................................... 94
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement to Subordinate................................... 95
SECTION 14.02. Distribution on Dissolution,
Liquidation and Reorganization;
Subrogation of Securities............................. 95
SECTION 14.03. Payments on Securities Prohibited
During Event of Default under
Senior Indebtedness................................... 99
SECTION 14.04. Payments on Securities Permitted........................... 100
SECTION 14.05. Authorization of Holders to
Trustee to Effect Subordination....................... 100
SECTION 14.06. Notice To Trustee.......................................... 101
SECTION 14.07. Right of Trustee to Hold Senior
Indebtedness or General
Obligations........................................... 101
SECTION 14.08. Article Fourteen Not to Prevent
Defaults or Events of Default......................... 101
SECTION 14.09. Securities to Rank Pari Passu with
Existing Subordinated
Indebtedness; Payment of Proceeds
in Certain Cases...................................... 101
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ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article................................... 104
SECTION 15.02 Repayment of Securities.................................... 104
SECTION 15.03. Exercise of Option; Notice................................. 104
SECTION 15.04. Election of Repayment by
Remarketing Entities.................................. 106
SECTION 15.05. Securities Payable on the
Repayment Date........................................ 106
ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be
Called................................................ 107
SECTION 16.02. Call, Notice and Place of Meetings......................... 107
SECTION 16.03. Persons Entitled to Vote at
Meetings.............................................. 108
SECTION 16.04. Quorum; Action............................................. 108
SECTION 16.05. Determination of Voting Rights;
Conduct and Adjournment of
Meetings.............................................. 109
SECTION 16.06. Counting Votes and Recording
Action of Meetings.................................... 110
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts............................................... 111
TESTIMONIUM................................................................ 112
SIGNATURES AND SEALS....................................................... 112
ACKNOWLEDGMENTS............................................................ 113
EXHIBIT A. Form of Certificate to be Given by
Person Entitled to Receive Bearer
Security
EXHIBIT B. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. in
Connection with the Exchange of a
Portion of a Temporary Global Security
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EXHIBIT C. Form of Certificate to be Given by
Euro-clear and CEDEL S.A. to Obtain
Interest Prior to an Exchange Date
EXHIBIT D. Form of Certificate to be Given by
Beneficial Owners to Obtain Interest
Prior to an Exchange Date
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Contents, p. 10
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN PROVISIONS
OF TRUST INDENTURE ACT OF 1939
Reflected in Indenture
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Section
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TIA
Section 310(a)(1) ..................................... 8.09
(a)(2) ..................................... 8.09
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(a)(5) ..................................... 8.09
(b) ..................................... 8.08
8.10
(c) ..................................... Not Applicable
Section 311(a) ..................................... 8.13
(b) ..................................... 8.13
Section 312(a) ..................................... 6.01
6.02(i)
(b) ..................................... 6.02(ii)
(c) ..................................... 6.02(iii)
Section 313(a) ..................................... 6.03(i)
(b) ..................................... 6.03(ii)
(c) ..................................... 6.03(i), (ii) and (iii)
(d) ..................................... 6.03(iii)
Section 314(a) ..................................... 6.04
5.05
(b) ..................................... Not Applicable
(c)(1) ..................................... 1.02
(c)(2) ..................................... 1.02
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.02
(f) ..................................... Not Applicable
Section 315(a) ..................................... 8.01(i)
8.01(iii)
(b) ..................................... 8.02
(c) ..................................... 8.01(ii)
(d) ..................................... 8.01
(d)(1) ..................................... 8.01(i)
(d)(2) ..................................... 8.01(iii)(b)
(d)(3) ..................................... 8.01(iii)(c)
(e) ..................................... 7.14
Section 316(a) ..................................... 1.01
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Reflected in Indenture
----------------------
Section
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Section 316(a)(1)(A) ..................................... 7.02
7.12
(a)(1)(B) ..................................... 7.13
(a)(2) ..................................... Not Applicable
(b) ..................................... 7.08
(c) ..................................... 1.04(viii)
Section 317(a)(1) ..................................... 7.03
(a)(2) ..................................... 7.04
(b) ..................................... 5.03
Section 318(a) ..................................... 1.08
(c) ..................................... 1.08
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THIS INDENTURE is entered into as of March 3, 1997, between
BANC ONE CORPORATION, a corporation organized and existing under the
laws of the State of Ohio (hereinafter called the "Company"), having
its principal executive office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, and THE CHASE MANHATTAN BANK, a New York banking corporation
(hereinafter called the "Trustee"), having its principal corporate
trust office at 000 X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and
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proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the term "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 3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture. 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;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(V) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at
the date of such computation.
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"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"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 to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the President,
any Vice Chairman of the Board, any Vice President, the Treasurer, the
Secretary, the Comptroller, any Assistant Comptroller, any Assistant Treasurer
or any Assistant Secretary of the Company.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer, including, without limitation,
unless the context otherwise indicates, a Security in global bearer form.
"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
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and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Columbus, Ohio and any Place of Payment for
the Securities are open for business.
"CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonymne or its
successors.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
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"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in
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respect of the principal of (and premium, if any) and interest on Securities
denominated in ECU, any other composite currency or Foreign Currency, and signed
by the Chairman of the Board, a Vice Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 3.01 and delivered to the
Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined
with respect to any series of Securities pursuant to Section 3.01, the Company's
7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74% Subordinated
Notes Due September 15, 2003, the Company's 7.00% Subordinated Notes Due July
15, 2005, the Company's 9.875% Subordinated Notes Due March 1, 2009, the
Company's 10.00% Subordinated Notes Due August 15, 2010, the Company's 7.75%
Subordinated Debentures Due July 15, 2025 and the Company's 7.625% Subordinated
Debentures Due October 15, 2026.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent regulatory agency or authority), as from time
to time in effect, establishes or specifies criteria for the inclusion in
regulatory capital of subordinated debt of a bank holding company requiring that
such subordinated debt be subordinated to obligations to creditors in addition
to those set forth above, then the term "General Obligations" shall also include
such additional obligations to creditors,
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as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
"Global Exchange Date" has the meaning specified in Section
3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of
a series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security) or a
coupon, means the bearer thereof.
"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 an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice Chairman of the Board, or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion
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shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"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 (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that 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 or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
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consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be 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 so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
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"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 such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered
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under this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness, whether outstanding
on the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"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 the Company" or "Subsidiary" means a corporation at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the
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election of directors irrespective of whether or not stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency.
"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 or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise
expressly provided) means the Trust Indenture Act of 1939, as in force at the
date as of which this instrument was executed, and, to the extent required by
law, as amended.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to 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".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
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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 as otherwise
expressly provided in this Indenture) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the
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certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
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The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by 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 such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. 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.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems
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sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
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(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document
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provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department, or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event,
(1) 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 Holder of Registered Securities 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.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited and
such stock exchange shall so require, in London and, if the Securities of
such series are then listed on the Luxembourg Stock Exchange and such stock
exchange shall so require, in Luxembourg and, if the Securities of such
series are then listed on any other stock exchange and such stock exchange
shall so require, in any other required city outside the United States, or,
if not practicable, elsewhere in Europe on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice.
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In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, Etc. Any request, demand,
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 and
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318, inclusive, of the TIA, such imposed duties or incorporated provision shall
control.
SECTION 1.09. 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 1.10. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. 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 1.12. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders and, to the extent
provided in Article Fourteen hereof, the holders of Senior Indebtedness and
creditors in respect of General Obligations, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of any
Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment or Redemption Date or on the date on which Defaulted
Interest is proposed to be paid and, if such payment is made, no interest shall
accrue on such payment for the period from and after any such Interest Payment
Date, Stated Maturity, Repayment Date or Redemption Date or date on which
Defaulted Interest is proposed to be paid, as the case may be.
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SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of New York.
ARTICLE TWO
Security Forms
SECTION 2.01. Form Generally. All Securities and any related coupons
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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
one of the forms approved from time to time by or pursuant to a Board Resolution
or an indenture supplemental hereto. Upon or prior to the delivery of a Security
or coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
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(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved,
certified by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture; and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof shall be established as provided in
Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
by_____________________________
Authorized Officer
SECTION 2.04. Global Securities. If Securities of a series are issuable
in whole or in part in global form, as specified as contemplated by Section
3.01, then, notwithstanding clause (xii) of Section 3.01 and the provisions of
Section 3.02, such Global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges or increased to reflect the issuance of additional
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uncertificated securities of such series. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.03 or
Section 3.04.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate initial
public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other
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Securities of that series pursuant to this Article Three or Sections
4.07, 9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable, the
Regular Record Date for the interest payable on any Interest Payment Date
and the basis upon which interest shall be calculated if other than that of
a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
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(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall be
issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if any such currency of
denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite currency;
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with reference
to an index, the method or methods by which such amounts shall be
determined;
(xvi) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of the
series are to be issuable with or without coupons or both and, in the case
of Bearer Securities, the date as of which such Bearer Securities shall be
dated if other than the date
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of original issuance of the first Security of such series of like tenor and
term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants
of the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness and creditors
in respect of General Obligations of the Company as provided in Article
Fourteen.
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Notwithstanding Section 3.01(ii) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Registered Securities of each series shall be issuable only
as Securities without coupons in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of each series, if any, shall be
issuable with coupons and in denominations of $5,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents, or its Treasurer and by its Secretary or one of its Assistant
Secretaries. The signatures of any or all of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Company's Chairman of the Board, its President, a Vice Chairman of the Board or
one of its Vice Presidents, or its Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer
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Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have delivered to the Trustee, or such other Person
as shall be specified in a temporary Global Security delivered pursuant to
Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner of
determining such terms have been
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established in conformity with the provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
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 or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series; 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 or other certificates delivered pursuant to
Sections 1.02 and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are
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the subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time in the aggregate principal amount, if
any, established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic (promptly confirmed in writing), electronic or written order of
Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its
authentication; and unless otherwise specified as contemplated by Section 3.01,
each Bearer Security and any temporary Global Security referred to in Section
3.04 shall be dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.06, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security or portion thereof shall have
been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancelation as provided in Section 3.09 together with a written statement (which
need not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
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SECTION 3.04. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute, and
upon Company Order and the receipt of the certifications and opinions required
under Sections 3.01 and 3.03, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denominations, substantially of the
tenor of the definitive Securities in lieu of which they are issued in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, 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. In the case of any series which
may be issuable as Bearer Securities, such temporary Securities may be in global
form, representing such of the Outstanding Securities of such series as shall be
specified therein.
(b) Unless otherwise provided pursuant to
Section 3.01:
(i) Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions of
the following paragraphs, 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 for that series, without charge to the
Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), 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; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in the
provisos to the third paragraph of Section 3.03. Until
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so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global
form, any such temporary Global Security shall, unless otherwise
provided in such temporary Global Security, be delivered to the London
office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the operator of Euroclear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct). Upon receipt of written
instructions (which need not comply with Section 1.02) signed on behalf
of the Company by any Person authorized to give such instructions, the
Trustee or any Authenticating Agent shall endorse such temporary Global
Security to reflect the initial principal amount, or an increase in the
principal amount, of Outstanding Securities represented thereby. Until
such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security
shall at any time represent the aggregate principal amount of
Outstanding Securities theretofore endorsed thereon as provided above,
subject to reduction to reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global
Security, and subject to the second proviso in the following paragraph,
the interest of a beneficial owner of Securities of a series in a
temporary Global Security shall be exchanged for definitive Securities
(including a definitive Global Bearer Security) of such series and of
like tenor following the Global Exchange Date (as defined below) when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear or
CEDEL S.A., as the case may be, a certificate in the form required by
Section 3.11(i), dated no earlier than 15 days prior to the Global
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent.
Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of
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charge to the beneficial owners of such temporary Global Security,
except that a Person receiving definitive Securities must bear the cost
of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL S.A. Definitive Securities
in bearer form to be delivered in exchange for any portion of a
temporary Global Security shall be delivered only outside the United
States.
(iv) Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary Global Security as the "Global Exchange Date" (the "Global
Exchange Date"), the Company shall deliver to the Trustee, or, if the
Trustee appoints an Authenticating Agent pursuant to Section 8.14, to
any such Authenticating Agent, definitive Securities in aggregate
principal amount equal to the principal amount of such temporary Global
Security, executed by the Company. Unless otherwise specified as
contemplated by Section 3.01, such definitive Securities shall be in
the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company, the Trustee or
any such Authenticating Agent, as may be appropriate. On or after the
Global Exchange Date, such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee or any such
Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or any such Authenticating
Agent shall authenticate and deliver, in exchange for each portion of
such temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series, of authorized denominations
and of like tenor as the portion of such temporary Global Security to
be exchanged, which, except as otherwise specified as contemplated by
Section 3.01, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof; provided, however, that unless
otherwise specified in such temporary Global Security, upon such
presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such
temporary Global
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Security held for its account then to be exchanged and a certificate
dated the Global Exchange Date or a subsequent date and signed by CEDEL
S.A., as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form required by Section
3.11(ii); and provided further that a definitive Bearer Security
(including a definitive global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in
compliance with the conditions set forth in the provisos to the third
paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary
Global Security, such temporary Global Security shall be endorsed by
the Trustee or any such Authenticating Agent, as the case may be, to
reflect the reduction of the principal amount evidenced thereby,
whereupon its remaining principal amount shall be reduced for all
purposes by the amount so exchanged. Until so exchanged in full, such
temporary Global Security shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such
temporary Global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Global Exchange Date
shall be payable, without interest, to Euroclear and CEDEL S.A. on or
after such Interest Payment Date upon delivery by Euroclear and CEDEL
S.A. to the Trustee or the Paying Agent, as the case may be, of a
certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary
Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, a certificate
in the form required by Section 3.11(iv). Any interest so received by
Euroclear and CEDEL S.A. and not paid as herein provided prior to the
Global Exchange Date shall be returned to the Trustee or Paying Agent,
as the case may be, which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company on
Company Request in accordance with Section 5.03.
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SECTION 3.05. Registration, Registration of Transfer and
Exchange. With respect to Registered Securities, the Company shall keep or cause
to be kept a register (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 Registered Securities and the registration
of transfers of Registered Securities and the Company shall appoint a "Security
Registrar", and may appoint any "Co-Security Registrar", as may be appropriate,
to keep the Security Register. Such Security 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
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have the City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in the City
of New York.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 5.02 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of such series of any authorized denominations and of a like
aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of such series, of any
authorized denominations and of like aggregate principal amount, tenor and
Stated Maturity, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer
Securities.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the
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Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for individual Securities
represented thereby, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall
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authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.03, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.01(vii) shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued 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 Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and
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delivery of definitive Securities of such series, shall authenticate and
deliver, without service charge:
(a) to the Depositary or 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
(b) 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 Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee, pursuant to a Company
Order, will authenticate and deliver, Securities (a) in definitive registered
form in authorized denominations, if the Securities of such series are issuable
as Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in
definitive form, such Global Securities shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section 3.05 shall be registered in such names and in such authorized
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section 3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the
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Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered
for transfer or exchanged, no service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to Holders.
Neither the Company, the Security Registrar nor any
Co-Security Registrar shall be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as
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Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer or exchange of any
Securities or portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities into Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; none of the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges unless and until the Trustee receives a subsequent Company Order
to the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) there is delivered
to the Company, the Trustee and the Security Registrar 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 Trustee or the Security Registrar 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 lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a mutilated, destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not mutilated, destroyed, lost or stolen), a new
Security of the same series and Stated Maturity and of like tenor and principal
amount, bearing a number not contemporaneously outstanding and, if applicable,
with coupons corresponding to the coupons appertaining thereto; provided,
however, that any new Bearer Security will be delivered only in compliance with
the conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead
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of issuing a new Security, pay such Security; provided, however, that payment of
principal of (and premium, if any) and any interest on Bearer Securities shall
be payable only at an office or agency located outside the United States, and,
in the case of interest, unless otherwise specified as contemplated by Section
3.01, only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security with a destroyed, lost or stolen coupon,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security 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. Unless otherwise specified as contemplated by
Section 3.01, in case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency referred to in Section 3.05) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment
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Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered 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
Holder on the relevant Regular Record Date by virtue of his having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted
Interest to the Persons in whose names any such Registered 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 shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when 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 of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment
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of such Defaulted Interest and the Special Record Date therefor to be mailed,
first class, postage prepaid, to each Holder 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 Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the limitations set forth in Section 5.02, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such
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coupon at an office or agency maintained for such purpose pursuant to Section
5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer
Security, any coupons appertaining thereto and any temporary Global Security
shall pass by delivery.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.07) interest on such Security, and
for all purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent or the Security Registrar will have the responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interest of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest, and they shall be fully protected in acting or refraining from acting
on any such information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with
respect to a series of Securities, all Securities and coupons surrendered for
payment, registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities
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previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture or such Securities. All
cancelled Securities or coupons held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures and the Trustee shall
deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the
Securities of each series shall be computed as shall be specified as
contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided
pursuant to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled
to receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes
as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with the exchange of a portion of a temporary
Global Security, such certification shall be provided substantially in
the form of Exhibit B hereto, with only such changes as shall be
approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and
CEDEL S.A. in connection with payment of interest with respect to a
temporary Global Security prior to the related Global Exchange Date,
such certification shall be provided substantially in the form of
Exhibit C hereto, with only such changes as shall be approved by the
Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial
owner of a portion of a temporary Global Security in connection with
payment of interest with respect to a temporary Global Security
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prior to the related Global Exchange Date, such certification shall be
provided substantially in the form of Exhibit D hereto, with only such
changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to
Section 3.01, for the Securities of any series that, to the fullest extent
possible under applicable law and except as may otherwise be specified as
contemplated in Section 3.01, (a) the obligation, if any, of the Company to pay
the principal of (and premium, if any) and interest on the Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and agrees that judgments in respect of such Securities shall
be given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest on such Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
currency (after any premium and cost of exchange) in the country of issue of the
Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the
Business Day immediately following the day on which such Holder receives such
payment; (c) if the amount in the Designated Currency that may be so purchased
for any reason falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if
then generally in use), and if, so, the Trustee shall use such numbers in
notices of redemption or other related material as a convenience to Holders;
provided that any such notice or other related material 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 redemption or other related
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material and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The
election of the Company to redeem any Securities redeemable at the option of the
Company shall be evidenced by an Officers' Certificate. In case of any
redemption at the election of the Company of the 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 and the Security Registrar 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 4.03. Selection by Security Registrar of Securities To
Be Redeemed. If less than all the Securities of any series with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Security Registrar
from the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for
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Securities of such series. Unless otherwise provided by the terms of the
Securities of any series so selected for partial redemption, the portions of the
principal of Securities of such series so selected for partial redemption shall
be, in the case of Registered Securities, equal to $1,000 or an integral
multiple thereof or, in the case of Bearer Securities, equal to $5,000 or an
integral multiple thereof, and the principal amount of any such Security which
remains outstanding shall not be less than the minimum authorized denomination
for Securities of such series.
The Security Registrar shall promptly notify the Company, the
Trustee and the Co-Security Registrar, if any, 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.
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 4.04. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 1.06, not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of
the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said date;
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(v) the place or places where such Securities, together in
the case of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if
such is the case; and
(vii) the CUSIP number or the Euroclear or the CEDEL reference
number (or any other number used by a Depositary to identify such
Securities), if any, of the Securities to be redeemed.
A notice of redemption published as contemplated by Section
1.06(2) need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on Company Request, by
the Trustee in the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the
opening of business on any Redemption Date, the Company shall deposit or cause
to be deposited 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 5.03) an amount of money sufficient to pay the Redemption Price of all
the Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. 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 and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
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however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by such Security, or as otherwise
provided in such Security.
SECTION 4.07. 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 a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such
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Security without service charge, a new Security or Securities of the same series
and Stated Maturity, containing identical terms and conditions, of any
authorized denominations 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.
SECTION 4.08. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall, subject to the
provisions of Section 14.04, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness and creditors in respect of General Obligations, except as
aforesaid, any moneys theretofore or thereafter received by the Trustee shall,
during the continuance of such Event of Default, be held in trust for the
benefit of the Holders and applied in the manner set forth in Section 7.06;
provided, however, that in case such Event of Default shall have been waived as
provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of, premium, if any, and interest
on the Securities of such series in accordance with the terms of the Securities
of such series, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.01 with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
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SECTION 5.02. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If Securities of a series
may be issuable as Bearer Securities, the Company will maintain (A) in the
Borough of Manhattan, the City of New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of
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any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 5.04) at the place specified for the purpose as contemplated
by Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, payment of principal of and any
premium and interest denominated in Dollars (including additional amounts
payable in respect thereof) on any Bearer Security may be made at an office or
agency of, and designated by, the Company located in the United States if (but
only if) payment of the full amount of such principal, premium, interest or
additional amounts in Dollars at all offices outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or similar restrictions
and the Trustee receives an Opinion of Counsel that such payment within the
United States is legal. Unless otherwise provided as contemplated by Section
3.01 with respect to any series of Securities, at the option of the Holder of
any Bearer Security or related coupon, payment may be made by check in the
currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by
transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes specified above in this
Section and may constitute and appoint one or more Paying Agents for the payment
of such Securities, in one or more other cities, and may from time to time
rescind such designations and
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appointments; provided, however, that no such designation, appointment or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency. Unless and until the Company rescinds one or more such
appointments, the Company hereby appoints The Chase Manhattan Bank, as its
Paying Agent in the City of New York with respect to all series of Securities
having a Place of Payment in the City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium 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
so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, at or prior to the opening of business on
each due date of the principal of, premium, if any, or interest on any
Securities of such series and any appurtenant coupons, deposit with a Paying
Agent a sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium 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:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any
appurtenant coupons in trust for the benefit of the Persons entitled
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thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) 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 payment of principal, premium or interest on the Securities of
such series or any appurtenant coupons; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust, and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 5.04. Additional Amounts. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of any series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below- mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
Principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their
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part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate (which need not comply with Section 1.02)
(provided, however, that one of the signatories of which shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such
year and of performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations and complied with all
conditions and covenants under this Indenture and under the terms of
the Securities throughout such year, or, if there has been a default in
the fulfillment of any such obligation, condition or covenant
specifying each such default known to him and the nature and status
thereof, and (b) no event has occurred and is occurring which is, or
after notice or lapse of time or both would become, a Default, or if
such an event has occurred and is continuing, specifying such event
known to him and the nature and status thereof.
For purposes of this Section, compliance or default shall be
determined without regard to any period of grace or requirement of notice
provided for herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and
Franchises. So long as any of the Securities shall be Outstanding, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises to carry on its
business; provided, however, that nothing in this Section 5.06 shall (i) require
the Company to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or
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merger of the Company, or any conveyance or transfer of its property and assets
substantially as an entirety to any person, permitted by Article Ten, (iii)
prevent the liquidation or dissolution of the Company after any conveyance or
transfer of its property and assets substantially as an entirety to any person
permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, as the case may be, and (ii) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is requested to be furnished; provided,
however, that if and so long as the Trustee is the Security Registrar for
Securities of a series, no such list need be furnished with respect to such
series of Securities.
SECTION 6.02. Preservation of Information; Communications to
Holders. (i) 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 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three 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 six months
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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 five Business Days after the receipt of such application,
at its election, either:
(a) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.02(i); or
(b) 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 6.02(i), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders of
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
6.02(i), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securities, 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
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hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities 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.
(iii) 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 6.02(ii), 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
6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May
l5 of each year commencing with the year 1997, the Trustee shall mail to each
Holder reports concerning the Trustee and its action under the Indenture as may
be required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by
mail (1) to all Holders of Registered Securities, as their names and addresses
appear in the Security Register and (2) to such Holders of Bearer Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
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SECTION 6.04. Reports by Company. The Company
will:
(i) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it 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 Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner
and to the extent provided in Section 6.03(ii), within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (i) and (ii) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with
respect to any series of Securities, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless it is either inapplicable to
a particular series or it is specifically deleted or modified in the
supplemental indenture or Board Resolution under which such series of Securities
is issued or in the form of Security for such series:
(i) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation of its affairs under any such law, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(ii) the institution by the Company of proceedings to be
adjudicated a bankrupt, or the consent of the Company to the
institution of bankruptcy proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State bankruptcy, insolvency or similar law, or the consent
by the Company to the filing of any such petition or to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator
(or other similar official) of the Company, or of substantially all of
its properties under any such law; or
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(iii) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal of
all the Securities of such series (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) to be immediately due and payable, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter 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, and any Event of Default giving rise to such declaration shall not
be deemed to have occurred, if:
(i) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(a) all overdue installments of interest on all 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;
(c) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the
Securities of such series; and
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(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security
Registrar, any Paying Agent, and their agents and counsel and
all other amounts due the Trustee under Section 8.07.
(ii) all other Defaults with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.
No such recession shall affect any subsequent default or
impair any right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid,
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and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If a 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 7.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any 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
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal, 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 or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 8.07) and of the
Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
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and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, 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 8.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
SECTION 7.06. 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, premium, if any, or interest, upon presentation of the Securities of
such series or coupons appertaining thereto, if any, or both, as the case may
be,
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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 8.07;
SECOND: Subject to Article Fourteen, to the payment of the
amounts then due and unpaid upon the Securities of such series and
coupons for principal, 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 Securities of such series and coupons, if
any, for principal, premium, if any, and interest, respectively. The
Holders of each series of Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities and matured
but unpaid interest on such series of Securities in the currency in
which such series of Securities is denominated into Dollars at the
Exchange Rate as of the Business Day immediately preceding the date of
payment; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security
of any series or any related coupons 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:
(i) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Securities of such
series;
(ii) the Holders of not less than a majority 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 Default in its own name as Trustee hereunder;
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(iii) 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;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(v) 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 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 ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any
series of Securities under this Indenture:
(a) an Event of Default with respect to such series specified
in Section 7.01; or
(b) default in the payment of the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security
of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or
perform any of the other covenants or agreements on its part in the
Securities of such series or in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other
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than that series) and continuance of such failure for a period of 90
days after the date on which written notice of such failure, requiring
the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder, shall have been given by registered mail
to the Company by the Trustee, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Securities
of such series at the time Outstanding; or
(e) any other Default provided with respect to Securities of
that Series.
SECTION 7.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.07) interest on such Security or payment of such
coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption or repayment on the Redemption Date or Repayment
Date) and to institute suit for the enforcement of such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders 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 Holders shall continue
as though no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Securities or coupons in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
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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 7.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Default shall impair any such right or
remedy or constitute a waiver of any such Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. 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
(i) such direction shall not be in conflict with any rule of
law or with this Indenture,
(ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction,
(iii) subject to the provisions of Section 8.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability, and
(iv) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of 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 and its consequences, except a default not theretofore cured
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(i) in the payment of the principal of, premium, if any, or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
Securities or coupons for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security or payment of any coupon on or
after the respective Stated Maturities expressed in such Security or coupon (or,
in the case of redemption or repayment, on or after the Redemption Date or
Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the
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Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except
during the continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee with
respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, 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 certificate
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 as to form to
the requirements of the Indenture.
(ii) In case a Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(iii) 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 wilful misconduct, except that
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(a) this Subsection shall not be construed to limit the effect
of Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(iv) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 8.02. Notice of Default. 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 Holders of Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) 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, premium, if any, or interest on any Security of such
series, or any related coupons or in the payment of any sinking fund installment
with respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of
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the Holders of Securities of such series; and provided further that in the case
of any default of the character specified in Section 7.07(d) with respect to
Securities of such series, no such notice to Holders of Securities 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, a Default or an Event of Default with respect to Securities of
such series.
SECTION 8.03. Certain Rights of Trustee. Except
as otherwise provided in Section 8.01:
(i) 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, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) 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;
(iv) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and
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liabilities which might be incurred by it in compliance with such
request or direction;
(vi) 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, security or other paper or document,
but the Trustee, in its discretion, may make further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney and, if so requested to do
so by any of the Holders, at the sole cost and expense of the Holders;
(vii) 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;
(viii) in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this Article Eight
shall also be afforded to such Paying Agent, Authenticating Agent or
Security Registrar;
(ix) the Trustee shall not be charged with knowledge of any
Default unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or (2) written notice of such
Default shall have been given to the Trustee by the Company or any
Holder; and
(x) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the
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Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 8.08 and 8.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 8.06. 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 in writing with the
Company.
SECTION 8.07. Compensation and Reimbursement. The Company
agrees
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) 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
(iii) 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
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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 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, premium, if any, or
interest on particular Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in 7.01, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07
and any lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eleven
of this Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to the indentures relating to Existing
Subordinated Indebtedness or to the Securities of any series by virtue of being
Trustee with respect to the Securities of any particular series of Securities
other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee with respect to each series of Securities
hereunder which shall 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 exercise corporate trust powers, having
a combined capital and
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surplus of at least $5,000,000, subject to supervision or examination by Federal
or State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. 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 8.10. Resignation and Removal; Appointment of
Successor. (i) 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 8.11.
(ii) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(iii) 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 such series, delivered to the Trustee and to
the Company.
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(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or by any Holder of Securities
of such series, or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) 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 Trustee with respect to any series of Securities
for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
8.11. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to such series
of Securities shall be appointed by the Act of the Holders of a majority in
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principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to such series and to that extent
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 Holders of Securities of such series and
accepted appointment in the manner hereinafter provided, any Holder who has been
A bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment for the Securities of such series
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In
the case of the appointment hereunder of a successor Trustee with respect to any
series of Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective with respect to all or any series as to
which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to all or any
such series; but, on request of the Company or such successor Trustee, such
retiring Trustee shall upon payment of its charges, execute and deliver an
instrument
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transferring to such successor Trustee all the rights, powers and trusts of such
retiring Trustee with respect to all or any such series; and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which
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the appointment of such successor Trustee relates, subject nevertheless to its
lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a 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 such
series under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
any claim as a creditor against the Company (or any such other obligor). A
Trustee that has resigned or been removed shall be subject to and comply with
said Section 311 to the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The
Trustee may appoint an Authenticating Agent or
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Agents, which may include any Affiliate of the Company, with respect to one or
more series of Securities. Such Authenticating Agent or Agents at the option of
the Trustee shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 3.06, 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. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication or the delivery of Securities to the Trustee for
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent, a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent and
delivery of Securities to the Authenticating Agent on behalf of the Trustee.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $5,000,000 and subject to supervision or examination by
Federal or State authority. Notwithstanding the foregoing, an Authenticating
Agent located outside the United States may be appointed by the Trustee if
previously approved in writing by the Company and if such Authenticating Agent
meets the minimum capitalization requirements of this Section 8.14. 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 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
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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 to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company. 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.
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.
THE CHASE MANHATTAN BANK, as
Trustee,
by________________________________
As Authenticating Agent
by
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______________________________
Authorized Officer
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holder of any Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or
Person to the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained; or
(ii) 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 8.11; or
(iii) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series of Securities or
coupons (and if such covenants are to be for the benefit of less than
all series of Securities or coupons, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company; or
(iv) 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 the Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect, or
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(v) to add any additional Defaults or Events of Default
with respect to all or any series of the Securities (and, if such
Default or Event of Default is applicable to less than all series of
Securities, specifying the series to which such Default or Event of
Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or any interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided
any such action shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
(vii) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or elimination
(a) shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or elimination
of such provision or (b) shall not apply to any Securities Outstanding;
or
(viii) to establish the form or terms of Securities of any
series as permitted by Sections 2.02 and 3.01, or
(ix) to add to or change any provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by
the terms thereof; or
(xi) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect
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the interest of Holders of Securities of any series or any appurtenant
coupons in any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby;
(i) change the Maturity of the principal of, or the Stated
Maturity of any installment of interest (or premium, if any) on, any
Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligation of the
Company to pay additional amounts pursuant to Section 5.04 (except as
contemplated by Section 10.01(i) and permitted by Section 9.01), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or
change the method of calculating interest thereon or the coin or
currency in which any Security (or premium, if any, thereon) or the
interest thereon is payable, or reduce the minimum rate of interest
thereon, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment, on or after the Redemption Date or
Repayment Date);
(ii) 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 certain defaults hereunder and
their consequences provided for in this Indenture or reduce the
requirements of Section 16.04 for a quorum;
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(iii) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 5.02; or
(iv) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. 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 8.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this
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Article shall conform to the requirements of the TIA as then in effect.
SECTION 9.06. 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
Company, 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.
SECTION 9.07. Subordination Unimpaired. No supplemental
indenture executed pursuant to this Article shall directly or indirectly modify
the provisions of Article Fourteen in any manner which might alter the
subordination of the Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(i) the Person formed by such consolidation 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 expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest (including all additional amounts, if any, payable
pursuant to Section 5.04) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction, no
Default, and no event which, after
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notice or lapse of time, or both, would become a Default, shall have
happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, 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 10.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
10.01, the successor Person formed by such consolidation 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 shall be relieved of all
obligations and covenants under this Indenture and may be dissolved, wound up
and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(i) either
(a) all Securities theretofore authenticated and
delivered (other than (1) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities
and maturing after such
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exchange, whose surrender is not required or has not been
waived as provided in Section 3.05, (2) coupons appertaining
to Bearer Securities called for redemption and maturing after
the relevant Redemption Date, whose surrender has been waived
as provided in Section 4.06, (3) coupons appertaining to
Bearer Securities surrendered for repayment pursuant to
Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4)
Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 5.03) have
been delivered to the Trustee for cancelation; or
(b) all such Securities not theretofore delivered to
the Trustee for cancelation
(1) have become due and payable, or
(2) will become due and payable at their
Maturity within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (b) (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in
trust for the purpose, an amount (said amount to be immediately due and
payable to the Holders) sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore delivered
to the Trustee for cancelation, for principal, premium, if any, and
interest to the date of such deposit (in the case of Securities which
have become due and payable), or to the Maturity or Redemption Date, as
the case may be;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 5.03, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 11.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
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ARTICLE TWELVE
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security or coupon, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining thereto
and (ii) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee and the Security Registrar
an Officers' Certificate specifying (i) the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, (ii) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 13.02, and (iii) that none of such
Securities has theretofore been so credited and stating the basis for such
credit, and will also deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each
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sinking fund payment date the Security Registrar shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 4.03 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 4.06 and 4.07 and shall
be subject to Section 4.08.
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement To Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of a
Security by his acceptance thereof, likewise covenants and agrees, that the
payment of the principal and premium, if any, and interest on each and all of
the Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof (and, upon the General Obligations and the creditors in respect
thereof with respect to the Securities and the Holders thereof) by a lawful plan
of reorganization under applicable bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in accordance with the terms of
such Senior Indebtedness of the principal thereof, premium, if any, and
the
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interest due thereon (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency, or similar law
now or hereafter in effect) before the Holders of the Securities are
entitled to receive any payment upon the principal of or premium, if
any, or interest on indebtedness evidenced by the Securities;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Fourteen, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, in
accordance with the priorities then existing among holders of Senior
Indebtedness for payment of the aggregate amounts remaining unpaid on
account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under
any applicable bankruptcy, insolvency or similar law now or hereafter
in effect) on the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; it being
understood that if the Holders of Securities shall fail to file a
proper claim in the form required by any proceeding referred to in this
subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are
hereby authorized to file an appropriate claim or claims for and on
behalf of the Holders of Securities in the form required in any such
proceeding (as are the
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creditors in respect of General Obligations in the event Section 14.09
is applicable); and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Securities, shall be received by the
Trustee or Holders of the Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be held in trust for
the benefit of and shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
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case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or
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a creditor in respect of General Obligations as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative) or a
creditor in respect of General Obligations, as the case may be. In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person, as a holder of Senior Indebtedness or a
creditor in respect of General Obligations, to participate in any payment or
distribution pursuant to this Section or Section 14.09, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness or General Obligations held by such Person,
as to the extent to which such Person is entitled to participation in such
payment or distribution, and as to other facts pertinent to the rights of such
Person under this Section or Section 14.09, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The obligations of the Company in respect of the Securities
shall rank on a parity with the Existing Subordinated Indebtedness and any other
obligations of the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or
creditors in respect of General Obligations, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness or creditors in respect of General
Obligations shall be read into this Indenture against the Trustee. The Trustee,
however, shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or creditors in respect of General Obligations, and shall not be
liable to any such holders or creditors if it shall mistakenly pay over or
distribute to or on behalf of Holders of Securities or the Company moneys or
assets to which any holders of Senior Indebtedness or creditors in respect of
General Obligations shall be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event
of Default under Senior Indebtedness. In the event and during the continuation
of any default in the payment of principal of, or premium, if any, or interest
on, any Senior Indebtedness beyond any applicable period of grace, or in the
event that any event of default with
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respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of the payment referred to hereinafter, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium or interest on the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (i) impair, as
between the Company and Holders of Securities, the obligation of the Company to
make, or prevent the Company from making, at any time except as provided in
Sections 14.02, 14.03, 14.08 and 14.09, payments of principal of or premium, if
any, or interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities, as and when the same shall become due and payable in accordance
with the terms of the Securities, (ii) affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the
Senior Indebtedness of the Company and the creditors in respect of General
Obligations, (iii) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
thereunder, subject to the rights, if any, under Article Fourteen of the holders
of Senior Indebtedness and the creditors in respect of General Obligations in
respect of cash, property or securities of the Company received upon the
exercise of such remedy, or (iv) prevent the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to the payment of or on
account of the principal of or premium, if any, or interest on the Securities or
prevent the receipt by the Trustee or any Paying Agent of such moneys, if, prior
to the second Business Day prior to such deposit, the Trustee or such Paying
Agent did not have written notice of any event prohibiting the making of such
deposit by the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect
Subordination. Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee
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in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Fourteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, but
subject to Section 14.04 hereof, neither the Trustee nor any Paying Agent shall
be charged with knowledge of the existence of any Senior Indebtedness or General
Obligations or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the representative of any
such holder or from any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or
General Obligations. The Trustee shall be entitled to all of the rights set
forth in this Article in respect of any Senior Indebtedness or General
Obligation at any time held by it in its individual capacity to the same extent
as any other holder of such Senior Indebtedness or creditor in respect of such
General Obligation and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or
Events of Default. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing
Subordinated Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject to
the provisions of this Section and to any provisions established or determined
with respect to Securities of any series pursuant to Section 3.01, the
Securities shall rank pari passu in right of payment with the Existing
Subordinated Indebtedness.
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(ii) Upon the occurrence of any of the events specified in
the first paragraph of Section 14.02, the provisions of that Section
and the corresponding provisions of each indenture or other instrument
or document establishing or governing the terms of any Existing
Subordinated Indebtedness shall be given effect on a pro rata basis to
determine the amount of cash, property or securities which may be
payable or deliverable as between the holders of Senior Indebtedness,
on the one hand, and the Holders of the Securities and holders of
Existing Subordinated Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section
14.02, and the respective corresponding provisions of each indenture or
other instrument or document establishing or governing the terms of any
Existing Subordinated Indebtedness on such pro rata basis, any amount
of cash, property or securities shall be available for payment or
distribution in respect of the Securities ("Excess Proceeds"), and any
creditors in respect of General Obligations shall not have received
payment in full of all amounts due or to become due on or in respect of
such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds
shall first be applied (ratably with any amount of cash, property or
securities available for payment or distribution in respect of any
other indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to
creditors in respect of General Obligations) to pay or provide for the
payment of the General Obligations remaining unpaid, to the extent
necessary to pay all General Obligations in full, after giving effect
to any concurrent payment or distribution to or for creditors in
respect of General Obligations. Any Excess Proceeds remaining after
payment (or provision for payment) in full of all General Obligations
shall be available for payment or distribution in respect of the
Securities.
(iv) In the event that, notwithstanding the foregoing
provisions of subsection (iii) of this Section, the Trustee or Holder
of any Security shall, in the circumstances contemplated by such
subsection, have received any payment or distribution of assets of the
Company of any kind or character, whether in cash,
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property or securities, before all General Obligations are paid in full
or payment thereof duly provided for, and if such fact shall, at or
prior to the time of such payment or distribution have been made known
to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 14.02, such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for
payment in accordance with subsection (iii).
(v) Subject to the payment in full of all General
Obligations, the Holder of the Securities shall be subrogated (equally
and ratably with the holders of all indebtedness of the Company that by
its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to creditors in respect of General
Obligations and is entitled to like rights of subrogation) to the
rights of the creditors in respect of General Obligations to receive
payments or distributions of cash, property or securities applicable to
the General Obligations until the principal of and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to creditors in respect of General
Obligations of any cash, property or securities to which Holders of the
Securities or the Trustee would be entitled except for the provisions
of this Section, and no payments over pursuant to the provisions of
this Section to creditors in respect of General Obligations by Holders
of Securities or the Trustee, shall, as among the Company, its
creditors (other than creditors in respect of General Obligations) and
the Holders of Securities be deemed to be a payment or distribution by
the Company to or on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this
Section are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and
the creditors in respect of General Obligations, on the other hand,
after giving effect to the rights of the holders of Senior
Indebtedness, as provided in this Article. Nothing contained in
subsections (iii), (iv) and (v) of this Section is intended to or shall
affect the
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relative rights against the Company of the Holders of the Securities
and (a) the holders of Senior Indebtedness, (b) the holders of Existing
Subordinated Indebtedness or (c) other creditors of the Company other
than creditors in respect of General Obligations.
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article. Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with their terms and (except as
otherwise specified pursuant to Section 3.01 for Securities of such series) in
accordance with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is
subject to repayment in whole or in part at the option of the Holder thereof on
a Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option; Notice. Each Holder
desiring to exercise such Holder's option for repayment shall, as conditions to
such repayment, surrender the Security to be repaid in whole or in part together
with written notice of the exercise of such option at any office or agency of
the Company in a Place of Payment, not less than 30 nor more than 45 days prior
to the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
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If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series and tenor
of any authorized denomination specified in the foregoing notice, in an
aggregate principal amount equal to any portion of the principal of the
Registered Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series and tenor of any
authorized denomination or denominations specified in the foregoing notice, in
an aggregate principal amount equal to any portion of the principal of the
Security so surrendered which is not to be repaid; provided, however, that the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States federal income tax
laws and regulations in effect at the time of the exchange; neither the Company,
the Trustee nor the Security Registrar shall issue Registered Securities for
Bearer Securities if it has received an Opinion of Counsel that as a result of
such issuance the Company would suffer adverse consequences under the United
States federal income tax laws then in effect and the Company has delivered to
the Trustee a Company Order directing the Trustee not to make
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such issuances thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 15.04, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price, in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate prescribed therefor by such Securities from time to time until payment
in full of such principal amount.
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ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable in whole or in part as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
by this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The
Trustee may at any time call a meeting of Holders of Securities of any series
issuable in whole or in part as Bearer Securities for any purpose specified in
Section 16.01, to be held at such time and at such place in the City of
Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 16.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Columbus, Ohio, the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (i) of this Section.
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SECTION 16.03. Persons Entitled To Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of a greater percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such greater
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In the absence of
a quorum in any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairperson of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 16.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the provisos to Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders
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of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any proxy shall be proved in the manner
specified in Section 1.04 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 1.04
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to certify to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 16.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 16.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
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resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
The Chase Manhattan Bank hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BANC ONE CORPORATION,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
THE CHASE MANHATTAN BANK,
Trustee,
by__________________________________
Attest:
________________________ [CORPORATE SEAL]
000
XXXXX XX XXXX, )
) ss.:
COUNTY OF FRANKLIN )
On this day of February, 1997, before me personally
came to me known, , who, being by me duly sworn, did
depose and say that he resides at ; that he is Treasurer of BANC
ONE CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
____________________________
Notary Public
[Notarial Seal]
000
XXXXX XX XXX XXXX, )
) ss.:
COUNTY OF NEW YORK,)
On this day of February, 1997 before me personally
appeared , to me known, who, being by me duly sworn,
did depose and say that he resides at ; that he is a
of THE CHASE MANHATTAN BANK, one of the parties described
in and which executed the foregoing instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________
Notary Public
[Notarial Seal]