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IDACORP, INC.
TO
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of February 1, 2001
SENIOR DEBT SECURITIES
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IDACORP, INC.
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*Reconciliation and tie between Trust Indenture Act of 1939, as amended by
the Trust Reform Act of 1990, and Indenture, dated as of February 1, 2001.
Section of the
Trust Indenture Act of 1939 Section of Indenture
--------------------------- --------------------
310(a)(1), (2) and (5).............................. 7.9
310(a)(3) and (4)................................... Inapplicable
310(b).............................................. 7.8 and 7.10(a)and(b)
311(a).............................................. 7.13(a) and (c)(1) and (2)
311(b).............................................. 7.13(b)
312(a).............................................. 5.1 and 5.2(a)
312(b).............................................. 5.2(b)
312(c).............................................. 5.2(c)
313(a).............................................. 5.4(a)
313(b)(1)........................................... Inapplicable
313(b)(2)........................................... 5.4(b)
313(c).............................................. 5.4(c)
313(d).............................................. 5.4(d)
314(a).............................................. 4.6 and 5.3
314(b).............................................. Inapplicable
314(c)(1) and (2)................................... 13.6
314(c)(3)........................................... Inapplicable
314(d).............................................. Inapplicable
314(e).............................................. 13.6
315(a), (c) and (d)................................. 7.1
315(b).............................................. 6.11
315(e).............................................. 6.12
316(a)(1)........................................... 6.9
316(a)(2)........................................... Inapplicable
316(a) (last sentence).............................. 8.4
316(b).............................................. 6.7
316(c).............................................. 8.1
317(a).............................................. 6.2
317(b).............................................. 4.4
318(a).............................................. 13.9
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* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture or to have any bearing upon the interpretation of any
of its terms or provisions.
TABLE OF CONTENTS*
PAGE
Parties.......................................................................1
Recitals......................................................................1
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined...........................................1
Authenticating Agent.........................................2
Authorized Newspaper.........................................2
Board of Directors...........................................2
Board Resolution.............................................2
Business Day.................................................2
Commission...................................................2
Company......................................................2
Corporate Trust Office.......................................2
Depository...................................................3
Dollar ($)...................................................3
Event of Default.............................................3
Generally Accepted Accounting Principles.....................3
Global Security..............................................3
Government Obligations.......................................3
Holder, Registered Holder and Securityholder.................4
include......................................................4
Indenture....................................................4
interest.....................................................4
Interest Payment Date........................................4
Issuer or Company............................................4
Issuer Order and Issuer Request..............................4
Maturity.....................................................4
Officers' Certificate........................................4
Opinion of Counsel...........................................5
Original Issue Discount Security.............................5
Outstanding..................................................5
Overdue Rate.................................................6
Paying Agent.................................................6
Person.......................................................6
Place of Payment.............................................6
Predecessor Security.........................................6
Redemption Date..............................................6
Redemption Price.............................................6
Registered Holder............................................6
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* This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture or to have any bearing upon the interpretation of any of its
terms or provisions.
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PAGE
Responsible Officer..........................................6
Securities Act...............................................7
Securities Register and Securities
Registrar....................................................7
Security or Securities.......................................7
Stated Maturity..............................................7
Trust Indenture Act..........................................7
Trustee......................................................7
vice president...............................................7
SECTION 1.2. Other Defined Terms.............................................7
ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally ................................................8
SECTION 2.2. Form of Trustee's Certificate of
Authentication...............................................8
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an Authenticating Agent....................9
SECTION 2.4. Securities Issuable in the Form of Global
Securities...................................................9
ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series...........................12
SECTION 3.2. Form and Denominations.........................................14
SECTION 3.3. Authentication, Dating and Delivery of
Securities...................................................14
SECTION 3.4. Execution of Securities........................................17
SECTION 3.5. Certificate of Authentication..................................17
SECTION 3.6. Registration, Registration of Transfer and
Exchange.....................................................17
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities...................................................19
SECTION 3.8. Payment of Interest; Interest Rights
Preserved....................................................20
SECTION 3.9. Cancellation of Securities; Destruction
Thereof......................................................21
SECTION 3.10. Temporary Securities...........................................21
SECTION 3.11. Computation of Interest........................................22
ARTICLE IV.
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities...........................................23
SECTION 4.2. Offices or Agency...............................................23
SECTION 4.3. Appointment to Fill a Vacancy in Office of
Trustee......................................................24
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PAGE
SECTION 4.4. Paying Agents ................................................24
SECTION 4.5. Maintenance of Corporate Existence..............................25
SECTION 4.6. Certificates to Trustee.........................................25
ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders.......................26
SECTION 5.2. Preservation and Disclosure of Securityholder
Lists........................................................26
SECTION 5.3. Reports by the Issuer...........................................28
SECTION 5.4. Reports by the Trustee..........................................29
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default..................................32
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.......................................35
SECTION 6.3. Application of Proceeds.........................................37
SECTION 6.4. Suits for Enforcement...........................................38
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings..................................................38
SECTION 6.6. Limitations on Suits by Securityholders.........................39
SECTION 6.7. Unconditional Right of Securityholders to
Institute Certain Suits......................................39
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default...............................40
SECTION 6.9. Control by Holders of Securities................................40
SECTION 6.10. Waiver of Past Defaults.........................................41
SECTION 6.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances............................41
SECTION 6.12. Right of Court to Require Filing of
Undertaking to Pay Costs.....................................42
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default.............................43
SECTION 7.2. Certain Rights of the Trustee...................................44
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof..........................................45
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PAGE
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc.............................................45
SECTION 7.5. Moneys Held by Trustee..........................................46
SECTION 7.6. Compensation and Indemnification of Trustee
and Its Prior Claim..........................................46
SECTION 7.7. Right of Trustee to Rely on Officers'
Certificate, etc.............................................46
SECTION 7.8. Qualification of Trustee; Conflicting
Interests....................................................47
SECTION 7.9. Persons Eligible for Appointment as Trustee.....................47
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee............................................48
SECTION 7.11. Acceptance of Appointment by Successor
Trustee......................................................49
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee............................50
SECTION 7.13. Preferential Collection of Claims Against
the Issuer...................................................50
SECTION 7.14. Authenticating Agent............................................55
ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders...............................................57
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities................................................57
SECTION 8.3. Holders to be Treated as Owners.................................58
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding..................................................58
SECTION 8.5. Right of Revocation of Action Taken.............................59
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings............................................60
SECTION 9.2. Call of Meetings by Trustee.....................................60
SECTION 9.3. Call of Meetings by Issuer or Holders...........................60
SECTION 9.4. Qualifications for Voting.......................................61
SECTION 9.5. Regulations ................................................61
SECTION 9.6. Voting ................................................62
SECTION 9.7. No Delay of Rights by Reason of Meeting.........................62
ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders..............................................63
SECTION 10.2. Supplemental Indentures With Consent of
Securityholders..............................................65
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PAGE
SECTION 10.3. Notice of Supplemental Indenture................................66
SECTION 10.4. Effect of Supplemental Indenture................................66
SECTION 10.5. Documents To Be Given to Trustee................................66
SECTION 10.6. Notation on Securities in Respect of
Supplemental Indentures......................................66
ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms................................................68
SECTION 11.2. Conditions to Consolidation or Merger, etc......................68
SECTION 11.3. Documents and Opinion To Be Furnished to the
Trustee......................................................69
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series...................................................70
SECTION 12.2. Satisfaction and Discharge of Indenture.........................71
SECTION 12.3. Application of Trust Money......................................72
SECTION 12.4. Repayment of Moneys Held by Paying Agent........................72
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee
and Paying Agent.............................................72
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability....................................................74
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders...............................74
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture....................................................74
SECTION 13.4. Notices to Holders; Waiver......................................74
SECTION 13.5. Addresses for Notices...........................................75
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein......................................................75
SECTION 13.7. Separability Clause.............................................76
SECTION 13.8. Legal Holidays .................................................76
SECTION 13.9. Conflict of Any Provision of Indenture with
Trust Indenture Act..........................................77
SECTION 13.10. Governing Law .................................................77
SECTION 13.11. Counterparts .................................................77
SECTION 13.12. Effect of Headings.............................................77
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PAGE
ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article........................................78
SECTION 14.2. Notice of Redemption; Selection of
Securities...................................................78
SECTION 14.3. Payment of Securities Called for Redemption.....................79
ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article........................................81
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payment with Securities......................................81
SECTION 15.3. Redemption of Securities for Sinking Fund.......................81
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INDENTURE, dated as of February 1, 2001, between IDACORP, INC., an Idaho
corporation (hereinafter, subject to Article XI, called the "Issuer" or the
"Company"), having its principal office at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxx
00000- 5627, and BANKERS TRUST COMPANY, a New York banking corporation, as
Trustee (hereinafter, subject to Article VII, called the "Trustee").
Recitals of the Issuer
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its notes, debentures or other
evidences of its unsecured indebtedness (hereinafter generally called the
"Securities"), to be issued in one or more series, authenticated and delivered,
as in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Persons acquiring the same, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders (as defined in Section 1.1.) of
the Securities or of the Securities of any series, without any priority of any
one Security or series over any other, except as otherwise expressly provided
herein, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture, including any indenture supplemental hereto,
have the respective meanings specified in this Section. All other terms used in
this Indenture that are defined in the Trust Indenture Act or the definitions of
which in the Securities Act of 1933 are referred to in the Trust Indenture Act
or that are defined by rule of the Commission under the Trust Indenture Act
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires) have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act or in said Commission rule under the
Trust Indenture Act as in force at the date on which this Indenture was
originally executed (subject to Sections 10.1 and 10.2). The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any
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particular Article, Section or other subdivision. All references herein to
"Articles" or other subdivisions are to the corresponding Articles or other
subdivisions of this Indenture. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Authenticating Agent" means, with respect to any series of Securities, any
authenticating agent appointed by the Trustee, with respect to that series of
Securities, pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper printed in the English language,
customarily published at least once a day, and customarily published for at
least five days in each calendar week, and of general circulation in The City of
New York. Whenever successive publications are required or authorized to be made
in Authorized Newspapers, the successive publications may be made (unless
otherwise expressly provided herein) in the same or different newspapers meeting
the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board of Directors duly authorized to act on behalf of the
Board of Directors.
"Board Resolution" means a copy of a resolution certified by the Secretary
or any Assistant Secretary of the Issuer to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, which is not
a day on which banking or trust institutions are authorized or required by law
or regulation to be closed in The City of New York.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the date on which this Indenture was originally executed such
Commission is not existing and performing the duties assigned to it under the
Trust Indenture Act on such date of original execution, then the body performing
such duties at such time.
"Company": See "Issuer".
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office, on the date of original execution of this Indenture, is located at Four
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Public Utilities.
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"Depository" means, with respect to the Securities of any series which, in
accordance with the determination of the Issuer, will be issued in whole or in
part in the form of one or more Global Securities, The Depository Trust Company,
New York, New York, another clearing agency or any successor registered under
the Securities Exchange Act of 1934, or other applicable statute or regulation,
which, in each case, shall be designated by the Issuer pursuant to either
Section 2.4 or 3.1. If at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series means the
Depository with respect to the Securities of that series.
"Dollar" ("$") 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.
"Event of Default" means any event or condition specified as such in
Section 6.1 which shall have continued for the period of time, if any, therein
designated.
"Generally Accepted Accounting Principles" means such accounting practice
and principles as, in the opinion of the independent accountants regularly
retained by the Issuer, conform at the time to accounting principles generally
accepted by the certified public accounting profession and applied on a
consistent basis (except for changes in application in which such accountants
concur). Any accounting terms not defined in this Indenture shall have the
respective meanings given to them under Generally Accepted Accounting Principles
consistent with those applied in the preparation of the Issuer's financial
statements or other financial statements required thereunder.
"Global Security" means, with respect to all or any part of any series of
Securities, a Security executed by the Issuer and authenticated and delivered by
the Trustee to the Depository or pursuant to the Depository's instruction, all
in accordance with this Indenture and pursuant to an Issuer Order, which shall
be registered in the name of the Depository or its nominee and the ownership of
which will be registered in a "book-entry" or other system maintained by the
Depository.
"Government Obligations" means securities which are (i) direct obligations
of the United States government or (ii) obligations of an agency or
instrumentality of the United States government the payment of which is
unconditionally guaranteed by the United States government, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
such term also includes a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933) as custodian with respect to any
such securities or
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specific payment of interest on or principal of any such securities held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the securities or the
specific payment of interest on or principal of the securities evidenced by such
depository receipt.
"Holder", "Registered Holder" and "Securityholder" mean, with respect to a
Security, the Person in whose name at the time such Security is registered in
the Securities Register (which terms, in the case of a Global Security, mean the
Depository, notwithstanding that the Depository maintains a "book-entry" or
other system for identification of ownership in respect of such Global
Security).
The term "include" (and other forms of such term) means "include, without
limitation".
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented,
and includes the forms and terms of particular series of Securities established
as contemplated hereunder.
The term "interest" means, with respect to non- interest-bearing
Securities, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities of any series.
"Issuer" or "Company" means (except as otherwise provided in Section 7.13)
IDACORP, Inc., an Idaho corporation, and, subject to Article XI, its successors
and assigns.
"Issuer Order" and "Issuer Request" mean a written order and a written
request, respectively, signed in the name of the Issuer by the president, any
vice president or the treasurer, and by any assistant treasurer, the secretary
or any assistant secretary of the Issuer, and delivered to the Trustee.
"Maturity" means, with respect to any Security, the date on which the
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by acceleration, call for redemption
or otherwise.
"Officers' Certificate" means a certificate signed by the president, any
vice president or the treasurer, and by any assistant treasurer, the secretary
or any assistant secretary of the Issuer, and delivered to the Trustee, except
that any Officers' Certificate delivered pursuant to Section 4.6 shall be signed
by a principal operating officer, principal financial officer or principal
accounting officer. Each such certificate
-4-
shall include the statements provided for in Section 13.6, if and to the extent
required thereby.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer or who may be other counsel
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.6, if and to the extent required thereby.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration with respect thereto pursuant to Section 6.1.
"Outstanding" (subject to Section 8.4) means, with reference to Securities
as of any particular time, all Securities authenticated and delivered under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been irrevocably deposited
in trust with the Trustee or with any Paying Agent (other than the Issuer)
or shall have been set aside, segregated and held in trust by the Issuer
for the Holders of such Securities (if the Issuer shall act as its own
Paying Agent) or for the payment of which Government Obligations shall have
been irrevocably deposited in trust with the Trustee in accordance with
Article XII; provided that, if such Securities, or portions thereof, are to
be redeemed prior to the Stated Maturity thereof, notice of such redemption
shall have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 3.7 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Issuer is presented that
such Security is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
In determining whether Holders of the requisite principal amount of
Outstanding Securities of any or all series have made or given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or are
present to constitute a quorum at a meeting of Holders of Securities, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the
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amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration with respect thereto
pursuant to Section 6.1.
"Overdue Rate" means, with respect to any series of Securities, the rate
designated as such in or pursuant to the resolution of the Board of Directors or
the supplemental indenture, as the case may be, relating to such series as
contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of, or premium, if any, or interest, if any, on, any Securities on
behalf of the Issuer.
"Person" means a legal person, including any individual, corporation,
estate, limited liability company, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government, or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of, and premium, if any, and interest, if
any, on, the Securities of such series are payable as specified pursuant to
Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.7 in lieu of a lost, destroyed,
mutilated or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Redemption Date" means, with respect to any Security to be redeemed, the
date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be redeemed, the
price at which it is to be redeemed pursuant to this Indenture.
"Registered Holder": See "Holder".
"Responsible Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, including any managing director, vice
president, assistant vice president, assistant treasurer, assistant secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers, and also, with respect
to a particular matter, any other officer, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
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"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar": See Section 3.6.
"Security" or "Securities" has the meaning stated in the recitals of this
Indenture.
"Stated Maturity" means, with respect to any Security or any installment of
interest thereon, the date specified in such Security as the fixed date on which
the principal of, or premium, if any, or interest, if any, on, such Security is
due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
in force (except as otherwise provided herein) at the date on which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article VII, shall also include any
successor trustee.
The term "vice president" means, with respect to the Issuer or the Trustee,
any vice president, whether or not designated by a number or a word or words
added before or after the title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other terms are defined in
Article VII and other Articles of this Indenture.
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ARTICLE II.
SECURITY FORMS
SECTION 2.1. Forms Generally. The Securities of each series shall be in
substantially such form as shall be established pursuant to Section 3.1, in each
case with 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 the Issuer may deem appropriate and as are not
contrary to the provisions of this Indenture, or as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or of any automated quotation system, or to conform to
usage, all as determined by the officers executing such Securities, as
conclusively evidenced by their execution of the Securities.
The definitive Securities of each series shall be prepared by the Company
and shall be printed, lithographed or engraved on steel-engraved borders, or may
be produced in any other manner, all as determined by the officers executing
such Securities, as conclusively evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the rules
of any securities exchange or automated quotation system on which the Securities
of such series are listed or quoted and (with respect to Global Securities of
any series) to the rules of the Depository.
SECTION 2.2. Form of Trustee's Certificate of Authentication. The Trustee's
Certificate of Authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
--------------------,
as Trustee
By
--------------------------------
Authorized Signatory
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SECTION 2.3 Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:
--------------------,
as Trustee
By [NAME OF AUTHENTICATING
AGENT],
Authenticating Agent
By
--------------------------------
Authorized Signatory
SECTION 2.4. Securities Issuable in the Form of Global Securities. (a) If
the Issuer shall establish pursuant to Section 3.1 that the Securities of a
particular series are to be issued in whole or in part as one or more Global
Securities, then the Issuer shall execute, and the Trustee shall, in accordance
with Section 3.3 and the Issuer Order delivered to the Trustee thereunder,
authenticate and make available for delivery, one or more Global Securities
which (i) shall represent an aggregate principal 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 in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect:
"Except as otherwise provided in Section 2.4 of the Indenture, unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein."
(b) Notwithstanding any provision of Section 3.6, any Global Security of a
series may be transferred, in whole but not in part, and in the manner provided
in Section 3.6, only to
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another nominee of the Depository for such series, or to a successor Depository
for such series selected or approved by the Issuer or to a nominee of such
successor Depository.
(c) If at any time the Depository for Securities of a series notifies the
Issuer that it is unwilling or unable to continue as Depository for Securities
of such series or if at any time the Depository shall no longer be registered or
in good standing under the Securities Exchange Act of 1934, or other applicable
statute or regulation, and a successor Depository is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
condition, as the case may be, this Section shall no longer be applicable to the
Securities of such series and the Issuer will execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of individual
Securities of such series, will authenticate and make available for delivery,
Securities of such series, in authorized denominations, and in an aggregate
principal amount equal to the aggregate principal amount of the Global Security
or Global Securities of such series in exchange for such Global Security or
Global Securities.
The Issuer may at any time determine that Securities of any series shall no
longer be represented by one or more Global Securities and that the provisions
of this Section shall no longer apply to the Securities of such series. In such
event the Issuer will execute and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of individual Securities of such series,
will authenticate and make available for delivery Securities of such series, in
authorized denominations, and in an aggregate principal amount equal to the
aggregate principal amount of the Global Security or Global Securities of such
series in exchange for such Global Security.
If specified by the Issuer pursuant to Section 3.1 with respect to a series
of Securities, the Depository for such series of Securities may surrender a
Global Security for such series of Securities in exchange in whole or in part
for individual Securities of such series on such terms as are acceptable to the
Issuer and such Depository. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and make available for delivery, without service charge,
(i) to each Person specified by such Depository a new individual
Security or Securities of the same series, 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
(ii) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the
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aggregate principal amount of individual Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding paragraphs of this
Section, the Issuer will execute and the Trustee will authenticate and make
available for delivery individual Securities in registered form in authorized
denominations.
Upon the exchange of a Global Security for individual Securities, such
Global Security shall be cancelled by the Trustee. Individual Securities issued
in exchange for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depository for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall make
such Securities available for delivery to the Persons in whose names such
Securities are so registered.
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ARTICLE III.
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued from time to time in one or more series. With
respect to the Securities of any particular series, there shall be established
in, or pursuant to the authority granted in, a resolution of the Board of
Directors (delivered to the Trustee in the form of a Board Resolution) or
established in one or more indentures supplemental hereto:
(1) the form of the Securities of the series;
(2) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.4, 3.6, 3.7, 3.10 or 14.3);
(4) the date or dates on which the Securities of the series may be
issued;
(5) the date or dates, which may be serial, on which the principal of,
and premium, if any, on, the Securities of the series are payable;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any (including
the rate or rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any); any formulary or
other method or other means by which any such rate or rates shall be
determined, by reference to an index or other fact or event ascertainable
outside this Indenture or otherwise; the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and the record dates, if other than as set forth in
Section 3.8, for the determination of Holders to whom interest is payable;
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(7) the place or places where the principal of, and premium, if any,
and interest, if any, on, the Securities of the series shall be payable (if
other than as provided in Section 4.2);
(8) the provisions, if any, establishing the price or prices at which,
the period or periods within 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 Issuer, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, and the period or periods within which, and the terms and conditions
upon which, Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) whether the Securities of the series are to be issued as Original
Issue Discount Securities and, if so, the amount of the discount with
respect thereto;
(12) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration with respect thereto pursuant to Section
6.1 or payable in bankruptcy pursuant to Section 6.2;
(13) any Events of Default or restrictive covenants provided for with
respect to the Securities of the series, if other than as set forth in
Section 6.1 and Articles IV and XI;
(14) if other than the rate of interest stated in the title of the
Securities of the series, the applicable Overdue Rate;
(15) in case the Securities of the series do not bear interest, the
applicable dates for the purpose of clause (a) of Section 5.1;
(16) if other than as set forth in Article XII, provisions for the
satisfaction and discharge of the Securities of the series and this
Indenture;
(17) any trustees, paying agents, transfer agents or registrars with
respect to the Securities of the series;
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(18) whether the Securities of the series are issuable in whole or in
part as one or more Global Securities and, in such case, the identity of
the Depository for such Global Security or Global Securities;
(19) any restrictions on transfer with respect to the Securities of
the series and any legend reflecting such restrictions to be placed on such
Securities;
(20) if the amount of payment of principal of, and premium, if any, or
interest, if any, on, the Securities of the series may be determined with
reference to an index, formula or other method, the manner in which such
amounts shall be determined;
(21) any exceptions to Section 13.8 or in the definition of "Business
Day" with respect to the Securities of the series; and
(22) any other terms of the series (which terms shall not be contrary
to the provisions of this Indenture).
With respect to any Securities (and without limiting the generality of the
foregoing provisions of this Section), such resolution of the Board of Directors
or indenture supplemental hereto may provide general terms or parameters and may
provide that the specific terms of particular Securities, and the Persons
authorized to determine such terms or parameters, may be determined in
accordance with or pursuant to the Issuer Order referred to in Section 3.3.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in, or pursuant to the
authority granted in, such resolution of the Board of Directors or in any such
indenture supplemental hereto.
SECTION 3.2. Form and Denominations. In the absence of any specification
pursuant to Section 3.1 with respect to the Securities of any series, the
Securities of such series shall be issuable in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Authentication, Dating and Delivery of Securities. At any time
and from time to time after the original execution and delivery of this
Indenture, the Issuer may deliver Securities of any series, executed by the
Issuer, to the Trustee for authentication. Except as otherwise provided in this
Article, the Trustee shall thereupon authenticate and make available for
delivery, or cause to be authenticated and delivered, said Securities to or upon
an Issuer Order, without any further action by the Issuer; provided, however,
that the Trustee shall authenticate and make available for delivery Securities
of such series for original issue from time to time
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in the aggregate principal amount established for such series pursuant to such
procedures, acceptable to the Trustee and to such recipients, as may be
specified from time to time by an Issuer Order. The maturity dates, original
issue dates, interest rates and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to
receive, prior to the initial authentication of such Securities, and (subject to
Section 7.1) shall be fully protected in relying upon:
(1) a Board Resolution relating thereto;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate which shall state that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect
to any series of Securities has occurred and is continuing and that the
issuance of such Securities does not constitute and will not result in (i)
any Event of Default or any event or condition, which, upon the giving of
notice or the lapse of time or both, would become an Event of Default or
(ii) any default under the provisions of any other instrument or agreement
by which the Company is bound; and
(4) an Opinion of Counsel, which shall state
(a) that the form and the terms of such Securities have been
established (i) by or pursuant to the authority granted in a
resolution of the Board of Directors delivered to the Trustee pursuant
to subparagraph (1) above or by a supplemental indenture delivered to
the Trustee pursuant to subparagraph (2) above, (ii) as provided by
Section 3.1 and (iii) in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Issuer enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles;
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(c) that the Issuer has the corporate power to issue such
Securities and has duly taken all necessary corporate action with
respect to such issuance;
(d) that, assuming compliance with any restrictions limiting the
debt issuance capacity of the Issuer applicable to such Securities at
the time of the issuance thereof, the issuance of such Securities will
not contravene the charter or by-laws of the Issuer or result in any
violation of any of the terms or provisions of any law or regulation
or of any indenture, mortgage or other instrument or agreement known
to such counsel by which the Issuer is bound; and
(e) that all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities, and the related
supplemental indenture, if any, have been complied with and that
authentication and delivery of such Securities and the execution and
delivery of the related supplemental indenture, if any, by the Trustee
will not violate the terms of the Indenture.
Notwithstanding the provisions of Section 3.1 and of this Section, if all
the Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution or supplemental indenture
otherwise required pursuant to Section 3.1 or the Issuer Order, Officers'
Certificate, Opinion of Counsel and other documents required pursuant to this
Section at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the time of authentication
upon original issuance of the first Security of such series to be issued;
provided, however, that any subsequent request by the Issuer to the Trustee to
authenticate Securities of such series shall constitute a representation and
warranty by the Issuer that as of the date of such request the statements made
in the Officers' Certificate delivered pursuant to Section 3.3(3) shall be true
and correct on the date thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate and make
available for delivery any Securities under this Section if the Trustee, being
advised by counsel reasonably acceptable to the Trustee and the Issuer,
determines that such action would expose the Trustee to personal liability.
Each Security shall be dated the date of its authentication, except as
otherwise provided pursuant to Section 3.1 with respect to the series of which
such Security is a part and except that any substitute Security under Section
3.7 shall be dated so that neither gain nor loss in interest shall
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result from any mutilation, destruction, loss or theft of the relevant
Predecessor Security.
SECTION 3.4. Execution of Securities. The Securities shall be signed in the
name of and on behalf of the Issuer by both (a) its president or any vice
president and (b) its treasurer, any assistant treasurer, its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of such
officers. The seal of the issuer may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced thereon.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by or on behalf of the Trustee or disposed of by the
Issuer, such Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Securities had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such Persons as, at the actual date of the original execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the original execution and delivery of this Indenture, or at the date of such
Security, any such Person was not such an officer.
SECTION 3.5. Certificate of Authentication. No Security shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form hereinbefore recited, executed by or on behalf of the
Trustee by manual signature. Such certificate by or on behalf of the Trustee
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration, Registration of Transfer and Exchange. Subject
to the conditions set forth below (and subject, with respect to Global
Securities, to Section 2.4), Securities of any series may be exchanged for a
like aggregate principal amount of Securities of the same series and having the
same terms but in other authorized denominations. Securities to be exchanged
shall be surrendered at the offices or agencies to be maintained for such
purposes as provided in Section 4.2, and the Issuer shall execute and the
Trustee or any Authenticating Agent shall authenticate and make available for
delivery in exchange therefor the Security or Securities which the Holder making
the exchange shall be entitled to receive.
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The Issuer shall keep or cause to be kept, at one of said offices or
agencies maintained pursuant to Section 4.2, a register for each series of
Securities issued hereunder (hereinafter collectively referred to as the
"Securities Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuer shall, subject to the provisions of Section 2.4,
provide for the registration of Securities of such series and shall register the
transfer of Securities of such series as in this Article provided. The
Securities Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby appointed as the initial "Securities Registrar" for the purpose of
registering Securities and registering transfers of Securities as herein
provided. Subject to the provisions of Section 2.4, upon surrender for
registration of transfer of any Security of any series at any such office or
agency, the Issuer shall execute and the Trustee or any Authenticating Agent
shall authenticate and make available for delivery in the name of transferee or
transferees a new Security or Securities of the same series for an equal
aggregate principal amount.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Issuer or the Securities
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Securities
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
Each Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the Issuer,
evidencing the same indebtedness and entitled to the same benefits under this
Indenture as the Security or Securities surrendered upon registration of such
transfer or exchange.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.10, 10.6, or 14.3 not involving any transfer.
The Issuer shall not be required (a) to issue, exchange or register the
transfer of any Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed.
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SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security shall become mutilated (whether by defacement
or otherwise) or be destroyed, lost or stolen, and in the absence of written
notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall, except as otherwise provided in this
Section, execute, and upon an Issuer Request, the Trustee shall authenticate and
make available for delivery, a new Security of the same series, tenor and
principal amount, bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In every case the applicant for a substituted Security shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security under this Section, the Issuer
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 or any Authenticating
Agent) connected therewith.
In case any Security which has matured or is about to mature or has been
called for redemption in full shall become mutilated or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security). In every case, the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be
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held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated (whether by defacement or otherwise) or
destroyed, lost or stolen Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved. The Holder of
any Securities at the close of business on any record date with respect to any
Interest Payment Date shall be entitled to receive the interest, if any, payable
on such Interest Payment Date notwithstanding the cancellation of such
Securities upon any registration of transfer or exchange subsequent to the
record date and prior to such Interest Payment Date, and, if provided for in the
Board Resolution pursuant to Section 3.1, in the case of a Security issued
between a record date and the initial Interest Payment Date relating to such
record date, interest for the period beginning on the date of issue and ending
on such initial Interest Payment Date shall be paid to the Person to whom such
Security shall have been originally issued. Except as otherwise specified as
contemplated by Section 3.1, for Securities of a particular series the term
"record date" as used in this Section with respect to any Interest Payment Date
shall mean the close of business on the last day of the calendar month preceding
such Interest Payment Date if such Interest Payment Date is the fifteenth day of
a calendar month and shall mean the close of business on the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day. At the option of the Issuer, payment of interest on any Security
may be made by check mailed to the address of the Person entitled thereto (which
shall be the Depository in the case of Global Securities) as such address shall
appear in the Securities Register.
If and to the extent the Issuer shall default in the payment of the
interest due on such Interest Payment Date in respect of any Securities, such
defaulted interest shall be paid by the Issuer at its election in each case, as
provided in clause (1) or (2) below:
(1) The Issuer may make payment of any defaulted interest to the
Holder of Securities at the close of business on a subsequent record date
established by notice given by mail, by or on behalf of the Issuer, to such
Holder not less than 15 days preceding such subsequent record date, such
record date to be not less than 10 days preceding the date for payment of
such defaulted interest.
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(2) The Issuer may make payment of any defaulted interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of such
series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of the
proposed payment pursuant to this clause, such manner of 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.
SECTION 3.9. Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Issuer or any Paying Agent or any Securities
Registrar, be delivered to the Trustee for cancellation or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall, unless instructed to deliver the Securities to the
Issuer in an Issuer Order, destroy such cancelled Securities and deliver
certification of their destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 3.10. Temporary Securities. Pending the preparation by the Issuer
of definitive Securities of any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series shall
be issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate for temporary
securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at the
Corporate
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Trust Office of the Trustee, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of the same series. Such
exchange shall be made by the Issuer at its own expense and without any charge
therefor except that in case of any such exchange involving any registration of
transfer the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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ARTICLE IV.
COVENANTS OF THE ISSUER
The Issuer covenants and agrees for the benefit of each series of
Securities (except to the extent that any series of the Securities is excluded
from the benefits of any of such covenants pursuant to Section 3.1(13)) that on
and after the date of original execution of this Indenture and so long as any of
the Securities of such series remain Outstanding:
SECTION 4.1. Payment of Securities. The Issuer will duly and punctually pay
or cause to be paid the principal of, and the premium, if any, and interest, if
any, on, the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities and in the Indenture. As
provided in Section 3.8, each installment of interest on the Securities of any
series may be paid by mailing checks for such interest payable to the Holders of
such Securities entitled thereto as their names shall appear on the Securities
Register.
SECTION 4.2. Offices or Agency. So long as any of the Securities remain
Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of
New York, New York, an office or agency where Securities of such series may be
presented or surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer in respect of the Securities of such series and
this Indenture may be served, which office or agency shall initially be the
Corporate Trust Office of the Trustee or, if the Corporate Trust Office of the
Trustee is not located in the Borough of Manhattan, The City of New York, such
office or agency shall be the principal corporate trust office of the
Authenticating Agent designated pursuant to Section 7.14 hereof. The Issuer will
give prompt written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Issuer shall fail to maintain such
required office or agency or shall fail to furnish the Trustee with the required
information with respect thereto, presentations, surrenders, notices and demands
in respect of Securities may be made or served at the Corporate Trust Office of
the Trustee and the corporate trust office of any Authenticating Agent appointed
hereunder; and the Issuer hereby appoints the Trustee and any Authenticating
Agent appointed hereunder its agents to receive all such presentations,
surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices
or agencies (in or outside The City of New York) where the Securities of such
series may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designation; provided, however, that no such
designation or rescission shall in any manner relieve the
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Issuer of its obligation to maintain for such purposes an office or agency in
the Borough of Manhattan, The City of New York. The Issuer will promptly notify
the Trustee of any such designation or rescission thereof.
SECTION 4.3. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any series, it
will cause such Paying Agent 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,
(a) that it will hold all sums received by it as such Paying Agent for
the payment of the principal of, and premium, if any, and interest, if any,
on, the Securities of such series (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such series) in
trust for the benefit of the Holders of the Securities of such series, or
of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of, or premium, if any, or interest, if any, on,
the Securities of such series when the same shall be due and payable, and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee it will forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
If the Issuer shall act as its own Paying Agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of, or premium, if any, or interest, if any, on, the Securities of such series,
set aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents with respect to
the Securities of any series, it will, on or prior to the due date of the
principal of, or premium, if any, or interest, if any, on, the Securities of
such series, deposit with a designated Paying Agent for such series a sum
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sufficient to pay the principal, premium, if any, or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium, if any, or interest, if any, and (unless
such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee at
its Corporate Trust Office of its failure so to act.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any Paying Agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 12.3, 12.4 and 12.5.
SECTION 4.5. Maintenance of Corporate Existence. The Issuer will preserve
its corporate existence, but this covenant shall not require the Issuer to
continue its corporate existence in the event of a consolidation or merger of
the Issuer with or into any other corporation in accordance with Article XI as a
result of which the Issuer shall lose its corporate identity, or in the event of
a sale, transfer or lease of the property of the Issuer as an entirety or
substantially as an entirety in accordance with Article XI.
SECTION 4.6. Certificates to Trustee. The Issuer will, on or before May 1
in each year, commencing with the year 2002, file with the Trustee an Officers'
Certificate complying with the provisions of the second paragraph of Section
13.6, covering the period from the date of original execution of this Indenture
to December 31, 2001 in the case of the first such certificate, and covering the
preceding calendar year in the case of each subsequent certificate, and stating
whether or not, to the knowledge of each of the signers, the Issuer has complied
with the conditions and covenants on its part contained in this Indenture, and,
if the signers, to the best of their knowledge, know of any default by the
Issuer in the performance, observance or fulfillment of any such condition or
covenant, specifying each such default and the nature thereof. For the purpose
of this Section, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
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ARTICLE V.
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 5.1. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series;
(a) semiannually and not more than 15 days after each record date for
the payment of interest, if any, on such Securities of such series, as of
such record date, and on dates to be determined pursuant to Section 3.1 for
non- interest bearing Securities of such series in each year, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of the Securities of such series, as of the respective record
dates therefor (and on dates to be determined pursuant to Section 3.1 if
the Securities of such series do not bear interest) as of a date not more
than 15 days prior to the time such information is furnished and need not
include information received after such date;
provided that, if and so long as the Trustee shall be the Securities Registrar
for such series, such list shall not be required to be furnished.
SECTION 5.2. Preservation and Disclosure of Securityholder Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of the
Securities (1) contained in the most recent list furnished to it as provided in
Section 5.1, (2) maintained by the Trustee in its capacity as Paying Agent for
such series (if so acting) hereunder and of the Securities Registrar for such
series, and (3) filed with it within two preceding years pursuant to the
provisions of paragraph (2) of subsection (c) of Section 5.4.
The Trustee may (1) destroy any list furnished to it as provided in Section
5.1 upon receipt of a new list so furnished, (2) destroy any information
received by it as Paying Agent for such series (if so acting) hereunder upon
delivery to itself as Trustee a list containing the names and addresses of the
Holders of Securities of such series obtained from such information since the
delivery of the next previous list, if any, (3) destroy any list delivered to
itself as Trustee which
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was compiled from information received by it as Paying Agent (if so acting)
hereunder upon the receipt of a new list so delivered, and (4) destroy any
information filed with it by the Holders of Securities of such series for the
purpose of receiving reports pursuant to the provisions of paragraph (2) of
subsection (c) of Section 5.4, but not until two years after such information
has been filed with it.
(b) In case three or more Holders of Securities (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 preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of a particular series (in which case at least three of
the applicants must all hold Securities of such series) or with Holders of all
Securities with respect to their rights under this Indenture or under such
Securities and such application 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
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities 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 the provisions of
subsection (a) of this Section 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
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Holders of Securities of such series or all Holders of Securities, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any Paying Agent 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 the provisions of subsection (b) of this Section, 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 such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer 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 Issuer may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer is not required to file
information, documents or reports pursuant to either of such Sections, then
to file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to 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
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Issuer with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent provided in Sections 5.4(c) and 5.4(d) within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) Within 60 days after May 15 in
each year following the date of original execution of this Indenture, so long as
any Securities are Outstanding hereunder, the Trustee shall transmit by mail as
provided below to the Securityholders of such series, as hereinafter in this
Section provided, a brief report, dated as of a date convenient to the Trustee
no more than 60 days prior thereto, with respect to any of the following events
which may have occurred within the previous twelve months (but if no such event
has occurred within such period, no report need be transmitted):
(i) any change to its eligibility under Section 7.9 and its
qualification under Section 7.8;
(ii) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(iii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities of such series Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Issuer (or by any other obligor on the
Securities of such series) to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13(b)(2), (3),
(4) or (6);
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(v) any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities of any series which the
Trustee has not previously reported; and
(vii) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities of any series, except action in
respect of a default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 6.11.
(b) The Trustee shall transmit to the Securityholders of each series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of original execution of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to this subsection
(b), except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of Securities of such series Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Securities, as the names and addresses of such
Holders appear in the Securities Register;
(2) to such Holders of Securities of any series as have, within two
years preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the cases of reports pursuant to subsection (b) of this
Section, to each Holder of a Security of any series whose name and address
are preserved at the time by the Trustee, as provided in subsection (a) of
Section 5.2.
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(d) A copy of each such report shall, at the time of such transmission to
the Securityholders of any series, be furnished to the Issuer and be filed by
the Trustee with each stock exchange upon which the Securities of such series
are listed and also with the Commission. The Issuer agrees to notify the Trustee
in writing promptly when and as the Securities of any series become admitted to
trading on any national securities exchange.
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ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default", with respect to the Securities of any series,
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
the applicable resolution of the Board of Directors or in the supplemental
indenture under which such series of Securities is issued, as the case may be,
as contemplated by Section 3.1:
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days and the
time for payment of such interest has not been extended; provided, however,
that if the Issuer is permitted by the terms of the Securities of the
applicable series to defer the payment in question, the date on which such
payment is due and payable shall be the date on which the Issuer is
required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series; or
(b) default in the payment of all or any part of the principal of or
premium, if any, on any of the Securities of such series as and when the
same shall become due and payable either at Stated Maturity, upon
redemption, by declaration or otherwise and the time for payment of such
principal (or premium, if any), has not been extended; provided, however,
that if the Company is permitted by the terms of the Securities of the
applicable series to defer the payment in question, the date on which such
payment is due and payable shall be the date on which the Company is
required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series; or
(c) default in the deposit of any sinking fund payment when and as due
and payable by the terms of the Securities of such series; or
(d) default in the performance or observance of any other covenant or
agreement of the Issuer in respect of the Securities of such series (other
than a covenant or
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agreement in respect of the Securities of such series a default in whose
performance or observance is elsewhere in this Section specifically dealt
with), and continuance of such default for a period of 60 days after there
has been given, by registered or certified mail, to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series affected
thereby, a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or, under any such law, (i) appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer or for any substantial part of its property or (ii) ordering the
winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or,
under any such law, (i) consent to the entry of an order for relief in an
involuntary case under any such law, (ii) consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or (iii) make any general assignment for the benefit
of creditors; or
(g) any other Event of Default established by or pursuant to a
resolution of the Board of Directors or one or more indentures supplemental
hereto as applicable to the Securities of such series.
If an Event of Default described in clause (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g) is with respect to fewer than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of such series) of all Securities of
such
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series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (g) above with
respect to all series of Securities then Outstanding occurs and is continuing,
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If any Event of Default described in clause (e) or
(f) occurs and is continuing, all the Securities then Outstanding and the
interest accrued thereon, if any, shall immediately become due and payable
without declaration, presentment, demand or notice of any kind by the Trustee or
any Holder of Securities Outstanding hereunder.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared or become due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest, if any,
upon all the Securities of such series (or upon all the Securities, as the case
may be) and the principal of (and premium, if any, on) any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the Overdue Rate
applicable to such series to the date of such payment or deposit) and all
amounts payable to the Trustee pursuant to the provisions of Section 7.6, and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the nonpayment of the principal of and accrued interest on
Securities of such series which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein -- then and in
every such case the
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Holders of a majority in aggregate principal amount of the Securities of such
series (each series voting as a separate class), or of all the Securities
(voting as a single class), as the case may be, then Outstanding, by written
notice to the Issuer and to the Trustee, may waive all defaults with respect to
that series (or with respect to all the Securities, as the case may be) and
rescind and annul such acceleration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Security shall have been accelerated and declared or
become due and payable pursuant to the provisions hereof, then, from and after
such acceleration, unless such acceleration has been rescinded and annulled, the
principal amount of such Original Issue Discount Security shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Security.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of or any premium, if any, on any
Securities of any series when the same shall have become due and payable,
whether upon Stated Maturity of the Securities of such series or upon any
redemption or by acceleration or otherwise or (c) in case of default in the
making or satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any series -- then upon
demand of the Trustee for such series, the Issuer will pay to the Trustee for
the benefit of the Holder of any such Security (or Holders of any such series of
Securities in the case of clause (c) above) the whole amount that then shall
have become due and payable on any such Security (or Securities of any such
series in the case of clause (c) above) for the principal, premium, if any, and
interest, if any, with interest upon the overdue principal and premium, if any,
and, so far as payment of the same is enforceable under applicable law, on
overdue installments of interest, at the Overdue Rate applicable to any such
Security (or Securities of any such series in the case of clause (c)); and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and any further amounts payable to the Trustee, its
agents and counsel pursuant to the provisions of Section 7.6.
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In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities (or Securities of any such series in case of clause (c)) and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Securities (or Securities of any such series in case of clause (c)),
wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name as
trustee of an express trust, or as attorney-in- fact for the Holders of any of
the Securities, or in both such capacities, to file such proof of debt,
amendment of proof of debt, claim, petition or other document as may be
necessary or advisable in order to have the claims of the Trustee and of the
Holders of Securities allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or other similar
proceedings, or any judicial proceedings, relative to the Company or any other
obligor on the Securities or its creditors or its property. The Trustee is
hereby irrevocably appointed (and the successive respective Holders of the
Securities, by taking and holding the same, shall be conclusively deemed to have
so appointed the Trustee) the true and lawful attorney-in-fact of the respective
Holders of the Securities, with authority to make or file in the respective
names of the Holders of the Securities any proof of debt, amendment of proof of
debt, claim, petition or other document in any such proceedings and to receive
payment of any sums becoming distributable on account thereof, and to execute
any other papers and documents and do and perform any and all acts and things
for and on behalf of such Holders of the Securities as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Holders of the Securities against the Issuer or any other obligor on the
Securities and/or its property allowed in any such proceedings, and to receive
payment of or on account of such claims; provided, however, that nothing herein
contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities, any plan of
reorganization or readjustment of the Issuer or any other obligor on the
Securities or, by other action of any character in any such proceeding, to waive
or change in any way any right of any Holder of any Security, even though it may
otherwise be entitled so to do under any present or future law, all such power
or authorization being hereby expressly denied.
All rights of action and of asserting claims under this Indenture or under
any of the Securities may be enforced by the Trustee without the possession of
any of the Securities or
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the production thereof in any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities in respect of which such action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 6.3. Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of any series of the Securities, together
with any other sums held by the Trustee (as such) hereunder (other than sums
held in trust for the benefit of the Holders of particular Securities), shall be
applied in the following order at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal, upon
presentation (except in respect of Subdivision First below) of the several
Securities in respect of which moneys have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which moneys have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
7.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee), so far as it may be enforceable under applicable
law, upon the overdue installments of interest at the Overdue Rate
applicable to such series, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
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THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and premium, if
any, and interest, if any, with interest upon the overdue principal and
premium, if any, and (to the extent that such interest has been collected
by the Trustee), so far as payment of the same is enforceable under
applicable law, upon overdue installments of interest, if any, at the
Overdue Rate applicable to such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal, premium,
if any, and interest, if any, without preference or priority of principal
and premium, if any, over interest, or of interest, if any, over principal
and premium, if any, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal,
premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer or as a
court of competent jurisdiction may direct.
SECTION 6.4. Suits for Enforcement. In case an Event of Default with
respect to Securities of any series has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of Proceedings. In case
the Trustee or any Holder shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or such Holder,
then and in every such case (subject to the binding effect of any determination
made in such proceedings) the Issuer and the Trustee shall be restored severally
and respectively to their former positions and rights hereunder, and (subject as
aforesaid) all rights, remedies and powers of the Issuer, the Trustee and the
Holders shall continue as though no such proceedings had been taken.
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SECTION 6.6. Limitations on Suits by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute an action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee to institute
such action or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder of any Security and with the Trustee, that no one or more
Holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and
every Holder of Securities of any series and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 6.7. Unconditional Right of Securityholders to Institute Certain
Suits. Nothing contained in this Indenture or in the Securities of any series
shall affect or impair the obligation of the Issuer, which is unconditional and
absolute, to pay the principal of, and premium, if any, and interest, if any,
on, the Securities of such series at the respective places, at the respective
times, at the respective rates, in the respective amounts and in the coin or
currency therein and herein prescribed, or affect or impair the right of action,
which is also absolute and unconditional, of any Holder of any Security to
institute suit to enforce such payment at the respective due dates expressed in
such Security, or upon redemption, by declaration, repayment or otherwise as
herein provided without reference to, or the consent of, the Trustee or the
Holder of any other Security, unless such Holder consents thereto or unless and
to the extent that the institution or prosecution thereof or the entry of
judgment therein, would,
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under applicable law, result in the surrender, impairment, waiver or loss of the
lien, if any, of this Indenture upon any property subject to such lien.
SECTION 6.8. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 6.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holder of any Security is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any Security of any
series to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holder of any Security may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holder of such Security.
SECTION 6.9. Control by Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture, and provided, further, that (subject to
the provisions of Section 7.1) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would expose the Trustee to
personal liability or if the Trustee in good faith shall so determine that the
actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 7.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
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As between the Trustee and the Holders of the Securities, nothing in this
Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction or directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the acceleration with
respect to Securities of any series as provided in Section 6.1, the Holders of
not less than a majority in aggregate principal amount of the Securities of such
series at the time Outstanding, may on behalf of the Holders of all the
Securities of such series waive any past default or Event of Default described
in clause (d) or (g) of Section 6.1 which relates to fewer than all series of
Securities then Outstanding, and the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected thereby (each
series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (d) or (g) (if the
Event of Default under clause (d) or (g) relates to all series of Securities
then Outstanding) of Section 6.1, the Holders of a majority in aggregate
principal amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default, and its consequences except a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Trustee and the Holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 6.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Securityholders of any
series, as the names and addresses of such Holders appear on the Security
Register, notice by mail of all defaults known to a Responsible Officer of the
Trustee which have occurred with respect to such series, such notice to be
transmitted within 90 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term "default" or
"defaults" for the purposes of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of, or premium, if any, or interest, if any, on,
any of the 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 or Responsible Officers of the
Trustee in good faith
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determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 6.12. Right of Court to Require Filing of Undertaking to Pay Costs.
The 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
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or, in
the case of any suit relating to or arising under clause (d) or (g) of Section
6.1 (if the suit relates to Securities of more than one but fewer than all
series), 10% in aggregate principal amount of Securities Outstanding affected
thereby, or, in the case of any suit relating to or arising under clause (d),
(g) (if the suit under clause (d) or (g) relates to all the Securities then
Outstanding), (e) or (f) of Section 6.1, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Holder of
Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest, if any, on, any Security on or after the due date expressed
in such Security.
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ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of that series and after the curing or waiving of all
Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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
(a) prior to the occurrence of an Event of Default with respect to the
Securities of such series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be
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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
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of Securities pursuant to Section 6.9 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 7.2. Certain Rights of the Trustee. Subject to Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or any assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
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(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the certificates of authentication, shall be taken as
the statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation 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 Issuer of any of the Securities or
of the proceeds thereof.
SECTION 7.4. Trustee and Agents May Hold Securities; Collections, etc. The
Trustee, any Paying Agent, Securities Registrar, Authenticating Agent or any
agent of the Issuer or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not the Trustee or such agent, and, subject to Sections 7.8 and 7.13, if
operative, may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the
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Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the provisions of Section
4.4, all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. The Trustee shall have no liability for interest on
money it receives and holds in trust except as specifically provided herein.
SECTION 7.6. Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay the Trustee from time to time, and
the Trustee shall be entitled to such compensation as the Issuer and the Trustee
may from time to time agree in writing for all services rendered by the Trustee
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the Issuer
covenants and agrees to pay or reimburse the Trustee and each predecessor
trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other Persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor trustee for, and hold it harmless against, any
loss, liability, damage, claims or expense, including taxes (other than taxes
measured by the income of the Trustee or otherwise applicable to the Trustee for
operations outside the scope of this Indenture) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor trustee and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
SECTION 7.7. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 7.1 and 7.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or
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established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken,' suffered or omitted by it under the provisions of
this Indenture upon the good faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting Interests. The Trustee
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded this Indenture with
respect to Securities of any particular series of Securities other than that
series. Nothing herein shall prevent the Trustee from filing with the Commission
the application referred to in the penultimate paragraph of Section 310(b) of
the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as Trustee. There shall at
all times be a Trustee hereunder for each series of Securities, which shall be
at all times either
(i) a corporation organized and doing business under the laws of the
United States of America or of any State or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, territory or
District of Columbia authority, or
(ii) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000. If
such corporation publishes reports of condition at least annually, pursuant to
law or to requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 7.9, the combined capital and surplus of such
corporation shall be deemed to be its combined capital
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and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee for the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section 7.9, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Issuer nor any Person directly or indirectly controlling,
controlled by, or under common control with the Issuer shall serve as Trustee
for the Securities of any series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign by giving written notice of resignation to the Issuer and by mailing
notice thereof by first-class mail to Holders of the Securities at their last
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees by written instrument in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities for at least six months may, subject to the provisions of Section
6.12, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities for at least six months unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section 310(b) of the
Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent; or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or
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control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, the Issuer may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.12, any Securityholder who has been a bona fide Holder
of a Security or Securities 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. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 8.1 of the action in that regard taken by the Securityholders.
(d) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective until acceptance of appointment by the successor trustee as
provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee hereunder; but nevertheless, on the written
request of the Issuer or of the successor trustee, upon payment of all amounts
due to the Trustee under Section 7.6, the Trustee ceasing to act shall, subject
to Section 4.4, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any Trustee ceasing to act, shall,
nevertheless, retain a prior lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.6.
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No successor trustee shall accept appointment as provided in this Section
7.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.8 and eligible under the provisions
of Section 7.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 7.11, the Issuer shall mail notice thereof by first-class mail to the
Holders of Securities at their last addresses as they shall appear on the
Security Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 7.10.
If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation in 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 substantially all of the corporate trust business of
the Trustee, shall be the successor of the trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.8 and eligible
under the provisions of Section 7.9, without the execution or filing of any
paper or any further act (including the giving of any notice to Securityholders)
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities or in this Indenture provided
for the certificate of authentication of the Trustee.
SECTION 7.13. Preferential Collection of Claims Against the Issuer. (a)
Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Issuer
or any other obligor of the Securities within three months prior to a default,
as defined in subsection (c) of this Section, or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall set apart
and hold in
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a special account for the benefit of the Trustee individually, the Holders of
the Securities and the holders of other indenture securities (as defined in this
Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Issuer and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
subsection (a)(2) of this Section, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Issuer upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Issuer and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than Issuer) who is liable thereon, (ii)
the proceeds of a bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Issuer in bankruptcy or
receivership or in the proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee has no reasonable cause to believe that a default as defined by
subsection (c) of this Section would occur within three months; or
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(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of the Securities and the holders of other indenture
securities in such manner that the Trustee, such Holders and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Issuer of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, Holders of the Securities and the holders of other indenture securities
dividends on claims filed against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion between the Trustee, the
Holders of Securities and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining
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the fairness of the distributions to be made to the Trustee, the Holders of
Securities and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distribution as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee who has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection (a)
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section a creditor
relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Holders of the applicable series of
Securities at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3) of
this Section;
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(5) the ownership of stock or of some other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c)(4) of
this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment in full
of the principal of or interest upon any of the Securities of the
applicable series or upon the other indenture securities when and as such
principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean securities upon
which the Issuer is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (iii) under which a
default exists at the time of the apportionment of the funds and property
held in said special account;
(3) the term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Issuer for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of goods, wares or
merchandise previously constituting the security, provided that the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation; and
(5) the term "Issuer" shall mean any obligor upon the Securities.
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SECTION 7.14. Authenticating Agent. So long as any Securities remain
Outstanding, if the Corporate Trust Office of the Trustee is not located in the
Borough of Manhattan, The City of New York, or otherwise upon an Issuer Request,
there shall be an authenticating agent (the "Authenticating Agent") appointed,
for such period as the Issuer shall elect, by the Trustee to act as its agent on
its behalf and subject to its direction in connection with the authentication
and delivery of Securities. Securities authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by such Trustee. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a Certificate of Authentication
executed on behalf of such Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or of
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $20,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. If the Corporate Trust Office of the Trustee is not located in the
Borough of Manhattan, The City of New York, the Authenticating Agent shall have
its principal office and place of business in the Borough of Manhattan, The City
of New York.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee
and to the Issuer. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.14, the Trustee shall upon Issuer Request appoint a
successor Authenticating Agent, and the Issuer shall provide notice of such
appointment to all Holders of Securities in the manner and to the extent
provided in Section 13.4. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties
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and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. The Issuer agrees to pay or to
cause to be paid to the Authenticating Agent from time to time reasonable
compensation for its services. The Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in good faith at
the direction of the Trustee.
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ARTICLE VIII.
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders. Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Securities of any series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such action the Holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Holders in
person or by agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article IX or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
The Issuer may (but shall not be required to) set a record date for purposes of
determining the identity of Securityholders entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture, which
record date shall be the later of 10 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 5.1 of this Indenture prior to such solicitation. If
a record date is fixed, those Persons who were Securityholders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such Persons continue to be Holders after such
record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of Securities.
Subject to Sections 7.1, 7.2 and 9.5, the execution of any instrument by a
Holder of a Security or his agent or proxy may be proved in any reasonable
manner that the Trustee deems sufficient, including, without limitation, in the
following manner:
The fact and date of the execution by any such Person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds, that the Person
executing such instrument acknowledged to him the execution thereof, or by
an affidavit or written statement of a witness to such execution. Where
such execution is by an officer of a corporation or association or a member
of a partnership on behalf of such corporation, association or partnership,
as the case may be, or by any other Person acting in a representative
capacity, such certificate, affidavit or written statement shall also
constitute sufficient proof of his authority.
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The ownership of Securities shall be proved by the Securities Register or
by a certificate of the Securities Registrar.
The record of any Holders' meeting shall be proved in the manner provided
in Section 9.6.
SECTION 8.3. Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security Register as the absolute
owner of such Security (notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of principal of, and
premium, if any, and (subject to Section 3.8) interest, if any, on, such
Security, and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by notice to the contrary. All such payments so made
to any Holder for the time being, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security.
None of the Issuer, the Trustee or any agent of the Issuer or the Trustee
shall have any 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. Notwithstanding the foregoing,
with respect to any Global Security, nothing herein shall prevent the Issuer or
the Trustee or any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by any Depository
(or its nominee), as a Holder, with respect to such Global Security or impair,
as between such Depository and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
right of such Depository (or its nominee) as holder of such Global Security.
SECTION 8.4. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Securities of any or all series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is
being made or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer or any other obligor
on the Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities
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which the Trustee knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Issuer shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above- described Persons; and,
subject to Sections 7.1 and 7.2, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 8.5. Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security, the
number, letter or other distinguishing symbol of which is shown by the evidence
to be included in the Securities the Holders of which have consented to such
action, may, by filing written notice at the Corporate Trust Office and upon
proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Security or such other Security. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
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ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings. A meeting of Holders of Securities of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee for the
Securities of such series, or to give any directions to the Trustee, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article VI;
(2) to remove the Trustee and nominate a successor Trustee pursuant to
the provisions of Article VII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 9.2. Call of Meetings by Trustee. The Trustee may at any time call
a meeting of Holders of Securities to take any action specified in Section 9.1,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, or such other Place of Payment, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities, 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 to Holders of Securities of the particular
series in the manner and to the extent provided in Section 13.4. Such notice
shall be given not less than 20 nor more than 90 days prior to the date fixed
for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case at any time the
Issuer, pursuant to a resolution of its Board of Directors, or the Holders of at
least 10% in aggregate principal amount of the Outstanding Securities of any or
all series, as the case may be, shall have requested the Trustee to call a
meeting of Holders of Securities of any or all series, as the case may be, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee for such series shall not have given the
notice of such meeting within 20 days after receipt of such request, then the
Issuer or such Holders may determine the time and the place in the Borough of
Manhattan or other Place of Payment for such
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meeting and may call such meeting to take any action authorized in Section 9.1,
by giving notice thereof as provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to vote at any
meeting of Holders a Person shall be (a) a Holder of one or more outstanding
Securities with respect to which such meeting is being held or (b) a Person
appointed by an instrument in writing as proxy by such Holder. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Issuer and its counsel.
SECTION 9.5. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of the Securities in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 9.3, in which case the Issuer
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting, shall be elected by majority vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of Securities with
respect to which such meeting is being held or proxy therefor shall be entitled
to one vote for each $1,000 principal amount (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Outstanding") of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
such Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Securities held by him or instruments in writing
aforesaid duly designating him as the Person to vote on behalf of other Holders.
At any meeting of Holders, the presence of Persons holding or representing
Securities with respect to which such meeting is being held in an aggregate
principal amount sufficient to take action on the business for the transaction
of which such meeting was called shall constitute a quorum, but, if less than a
quorum is present, the Persons holding or representing a majority in aggregate
principal amount of such Securities represented at the
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meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present. Any meeting of Holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 9.2 or Section 9.3 may be adjourned from time to time by
Persons holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting, present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted to any meeting
of Holders of Securities with respect to which such meeting is being held shall
be by written ballots on which shall be subscribed the signatures of such
Holders or of their representatives by proxy and the serial number or numbers of
the Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.2. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.7. No Delay of Rights by Reason of Meeting. Nothing in this
Article contained shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Holders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
under any of the provisions of this Indenture or of the Securities of any
series.
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ARTICLE X.
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer under this
Indenture and the Securities;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the Holders of any series of
Securities, and to make the occurrence and continuance of a default in any
such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in respect of
any such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not materially adversely affect the interests of the Holders of
any Securities;
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(e) to establish the form or terms of Securities of any series as
permitted by Section 3.1;
(f) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only), to
provide for interchangeability thereof with Securities in registered form
of the same series and to make all appropriate changes for such purpose, or
to permit or facilitate the issuance of Securities of any series in
uncertificated form;
(g) to provide for the issuance under this Indenture of Securities
denominated or payable in currency other than Dollars and to make all
appropriate changes for such purpose;
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities, pursuant
to Section 7.11, or 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;
(i) to modify any restrictions on and procedures for resales of
Securities of any series that is not registered pursuant to the Securities
Act to reflect any change in applicable law or regulation (or the
interpretation thereof) or in practices relating to the resale or transfer
of restricted securities generally and to modify any legends placed on such
securities to reflect such restrictions and procedures;
(j) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable to conform to provisions of the Trust
Indenture Act as at the time in effect, provided that such action shall not
materially adversely affect the interests of the Holders of the Securities
of any series; and
(k) otherwise to change or eliminate any of the provisions of this
Indenture; provided, however, that any such change or elimination may only
be effected when no Outstanding Security of any series created prior to the
execution of such supplemental indenture is entitled to the benefit of such
provision.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such
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supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 10.2.
SECTION 10.2. Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article VIII) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided that no such supplemental indenture shall (a) change the Stated
Maturity of any Security of such series, or reduce the principal amount thereof
or the amount of any premium thereon, or reduce the rate, extend the time of
payment or change the method of calculation of interest thereon, or reduce any
amount payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration with respect thereto pursuant to Section 6.1 or the amount thereof
provable in bankruptcy pursuant to Section 6.2, or impair or adversely affect
the right of any Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security of such
series so affected, or (b) reduce the aforesaid percentage of the principal
amount of Securities of such series, the consent of the Holders of which is
required for any such supplemental indenture or any waiver of any obligations of
the Issuer under this Indenture, without the consent of the Holders of each
Security of such series so affected, or (c) subordinate the indebtedness
evidenced by the Securities of such series to any indebtedness of the Issuer
without consent of the Holder of each Security of such series so affected.
Upon the request of the Issuer, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 8.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise,
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in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
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.
SECTION 10.3. Notice of Supplemental Indenture. Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture pursuant
to the provisions of Section 10.2, the Issuer shall mail a notice thereof by
first-class mail to the Holders of Securities of each series affected thereby at
their addresses as they shall appear on the Security Register, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, but only with regard to the Securities of each series affected by
such supplemental indenture, and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the Holders of any Securities of such series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes with regard to
the Securities of such series.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee, subject to the
provisions of Sections 7.1 and 7.2, shall receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article complies with the applicable provisions of
this Indenture.
SECTION 10.6. Notation on Securities in Respect of Supplemental Indentures.
Securities of any series affected by
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any supplemental indenture which are authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Issuer and the Trustee as to
any matter provided for in such supplemental indenture. If the Issuer shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
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ARTICLE XI.
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell on Certain Terms. The
Issuer will not consolidate with, or merge into, or sell all or substantially
all of its assets to, any Person, except that the Issuer may permit any Person
to be merged into the Issuer or may, subject to Section 11.2, consolidate with
or merge into, or sell all or substantially all of its assets to, any solvent
Person organized in the United States of America (substantially all of the
assets of which are located within the United States of America); provided that,
immediately after giving effect to such transaction, no Event of Default shall
have occurred and be continuing under this Indenture.
SECTION 11.2. Conditions to Consolidation or Merger, etc. The Issuer
covenants and agrees that it will not consolidate with or merge into any other
corporation, or sell all or substantially all of its assets, unless, and the
Issuer covenants and agrees that any such consolidation, merger or sale shall be
upon the condition that, the due and punctual payment of the principal of, and
premium, if any, and interest, if any, on, all the Securities of each series
according to their tenor, and the due and punctual performance and observance of
all the terms, covenants and conditions of this Indenture to be performed or
observed by the Issuer, shall, by a supplemental indenture hereto pursuant to
Section 10.1(b), be expressly assumed by the successor corporation, if other
than the Issuer, formed by or surviving any such consolidation or merger or to
which such sale, transfer or lease shall have been made, as fully and
effectually as if such successor corporation had been an original party to this
Indenture.
Every such successor corporation, if other than the Issuer, upon executing
such supplemental indenture, in form satisfactory to the Trustee, shall succeed
to and be substituted for the Issuer with the same effect as if it had been an
original party hereto, and shall possess and from time to time may exercise each
and every power of the Issuer under this Indenture, and, in the case of any such
sale or transfer, the Person named as the "Issuer" in the first paragraph of
this Indenture or any successor corporation which shall theretofore have become
such in the manner prescribed in this Article shall be released from its
liability hereunder and as obligor on all the Securities. Such successor
corporation thereupon may execute and deliver Securities under this Indenture,
either in the name of the Issuer (unless the Issuer shall have been released
from its liability hereunder and as obligor on the Securities as provided in the
next preceding sentence) or of such successor corporation, and any act or
proceeding required by this Indenture to be done or performed by any board or
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officer of the Issuer may be done or performed with like force and effect by the
comparable board or officer of such successor corporation. Such change in
phraseology and form (but not in substance) may be made in the Securities as may
be appropriate in view of such consolidation, merger, sale, transfer or lease.
All the Securities when issued by such successor corporation shall in all
respects have the same legal priority as the Securities theretofore or
thereafter authenticated, issued and delivered in accordance with the terms of
this Indenture.
SECTION 11.3. Documents and Opinion To Be Furnished to the Trustee. The
Issuer covenants and agrees that if it shall consolidate with or merge into any
other corporation, or if it shall sell all or substantially all of its assets,
the Issuer will promptly furnish to the Trustee:
(1) An Officers' Certificate stating that the conditions and covenants
of the Issuer contained in Section 11.2 have been complied with;
(2) An executed counterpart of any instrument or instruments executed
by the Issuer in the performance of such conditions and covenants; and
(3) An Opinion of Counsel stating that in the opinion of such counsel
such conditions and covenants have been complied with and that any
instrument or instruments executed by the Issuer in the performance of such
conditions and covenants comply with the requirements of such conditions
and covenants.
The Trustee shall receive an Opinion of Counsel as conclusive evidence that
any such consolidation, merger or sale, any such assumption and any such
supplemental indenture comply with this Article.
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ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities of Any Series.
Except as otherwise provided for the Securities of any series established
pursuant to Section 3.1(16), the Issuer shall be deemed to have satisfied and
discharged this Indenture with respect to the entire indebtedness on all the
Outstanding Securities of any particular series, and the Trustee, at the expense
of the Issuer and upon Issuer Request, shall execute proper instruments
acknowledging such satisfaction and discharge, when
(1) either
(A) all Outstanding Securities of such series theretofore
authenticated and delivered (other than (i) any Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.7 and (ii) Outstanding
Securities of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 12.5) have been delivered to the Trustee for
cancellation; or
(B) with respect to all Outstanding Securities of such series
described in sub-clause (A) above (other than the Securities referred
to in the parenthetical phrase thereof) not theretofore delivered to
the Trustee for cancellation:
(i) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust an
amount (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay and discharge
the entire indebtedness on all such Outstanding Securities of
such series for principal (and premium, if any) and interest to
the Stated Maturity or any Redemption Date as contemplated by
Section 12.3, as the case may be; or
(ii) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as obligations in trust
such amount of Government Obligations as will, in a written
opinion of independent public accountants delivered to the
Trustee, together with the predetermined and certain income to
accrue
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thereon (without consideration of any reinvestment thereof), be
sufficient to pay and discharge when due the entire indebtedness
on all such Outstanding Securities of such series for unpaid
principal (and premium, if any) and interest to the Stated
Maturity or any Redemption Date as contemplated by Section 12.3,
as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities of such series including all
fees due to the Trustee under Section 7.6;
(3) the Issuer 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 due satisfaction and discharge of this
Indenture with respect to the entire indebtedness on all Outstanding
Securities of any such series have been complied with; and
(4) if the Securities of such series are not to become due and payable
at their Stated Maturity within one year of the date of such deposit or are
not to be called for redemption within one year of the date of such deposit
under arrangements satisfactory to the Trustee as of the date of such
deposit, then the Issuer shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of the Securities of such
series.
Upon the satisfaction of the conditions set forth in this Section 12.1 with
respect to all the Outstanding Securities of any series, the terms and
conditions with respect thereto set forth in this Indenture shall no longer be
binding upon, or applicable to, the Issuer; provided, however, that the Issuer
shall not be discharged from (a) any obligations under Sections 7.6 and 7.10 and
(b) any obligations under Section 3.6 or 3.7 and Section 5.1; and provided,
further, that in the event a petition for relief under the federal Bankruptcy
Code or a successor statute is filed with respect to the Issuer within 91 days
after the deposit, this Indenture with respect to the entire indebtedness on all
Securities of such series shall not be discharged, and in such event the Trustee
shall return such deposited funds or obligations as it is then holding to the
Issuer upon Issuer Request.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon compliance by
the Issuer with the provisions of Section 12.1 as to the satisfaction and
discharge of this Indenture with respect to each series of Securities issued
hereunder and if the Issuer has paid or caused to be paid all other sums payable
under this Indenture, this Indenture shall cease to be of any further effect
(except as otherwise provided
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herein). Upon Issuer Request and receipt of an Opinion of Counsel and an
Officers' Certificate (and at the expense of the Issuer), the Trustee shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Issuer under Sections 3.6, 3.7, 5.1, 7.6 and 7.10 and the
obligations of the Trustee under Section 12.3 shall survive.
SECTION 12.3. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 12.1 shall be held irrevocably in
trust and shall be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Issuer and the Trustee. Such money and obligations
shall be applied by the Trustee, in accordance with the provisions of the
Securities, this Indenture and such escrow trust agreement, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal of (and premium, if any) and interest, if any, on the
Securities for the payment of which such money and obligations have been
deposited with the Trustee. If Securities of any series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory or optional sinking fund requirement, the
Issuer shall give the required notice of redemption or shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys with respect to such series then held by any Paying Agent
(and not required for such satisfaction and discharge) shall, upon demand of the
Issuer, be repaid to it or paid to the Trustee and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
SECTION 12.5. Return of Unclaimed Moneys Held by Trustee and Paying Agent.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the
payment of the principal of, or premium, if any, or interest, if any, on,
Securities of any series and which shall not be applied but shall remain
unclaimed by the Holders of Securities of such series for two years after the
date upon which such payment shall have become due and payable, shall be repaid
to the Issuer by the Trustee on demand; and the Holder of any of such Securities
entitled to receive such payment shall thereafter look only to the Issuer for
the payment thereof; provided, however, that the Issuer or the Trustee, before
making any such repayment, shall at the expense of the Issuer cause to be
published once a week for two
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successive weeks (in each case on any day of the week) in an Authorized
Newspaper, or mail to each Holder, or both, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Issuer.
If the Trustee or Paying Agent is unable to apply any money in accordance
with Section 12.3 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.1 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 12.3; provided,
however, that if the Company makes any payment of interest on or principal of
any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of such Securities.
SECTION 13.2. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders of the Securities, any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and the Holders of the
Securities.
SECTION 13.3. Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by first class
mail, postage prepaid, to such Holders as their names and addresses appear on
the Securities Register within the time prescribed. 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 on such waiver. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed to any particular Holder, shall
affect the sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be conclusively
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presumed to have been duly given. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders otherwise required or
permitted under this Indenture, then such notification as shall be given with
the approval of the Trustee shall constitute sufficient notice to such Holders
for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities of any series on the Issuer may be
given or served by registered mail addressed (until another address is filed by
the Issuer with the Trustee) as follows: IDACORP, Inc., 0000 Xxxx Xxxxx Xxxxxx,
Xxxxx, Xxxxx 00000-0000, Attention: General Counsel. Any notice, direction,
request or demand by the Issuer or any Holders of Securities of any series to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if received at the Corporate Trust Office of such Trustee.
SECTION 13.6. Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including any covenants compliance with which constitutes
a condition precedent) provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including any covenants
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other than
annual certificates provided pursuant to Section 4.6) and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
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Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 13.7. Separability Clause. In case any provision of this Indenture
or of 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 13.8. Legal Holidays. In any case where the date of maturity of
interest on or principal of (or premium, if any, on) the Securities or the date
fixed for redemption or repayment of any Security shall not be a Business Day at
any Place of Payment with respect to Securities of that series, then
(notwithstanding any other provisions of this Indenture or of the Security)
payment of such interest on or principal of (or premium, if any, on) the
Securities of such series need not be made on such date in such Place of Payment
but may be made on the next succeeding Business Day in such Place of Payment
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repayment, as the case may be, and no interest shall
accrue for the period from and after such date by reason of such delayed
payment.
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SECTION 13.9. Conflict of Any Provision of Indenture with Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the former
provision shall control.
SECTION 13.10. Governing Law. This Indenture and Security shall be governed
by and construed in accordance with the laws of the State of Idaho, except that
the obligations, rights and remedies of the Trustee hereunder shall be
determined under the laws of the State of New York.
SECTION 13.11. Counterparts. This Indenture may be executed in any number
of counterparts, and on separate counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 13.12. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
interpretation hereof.
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ARTICLE XIV.
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their stated Maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series. For purposes of Section 14.2, the redemption of all
Securities having the same terms within a series shall not be deemed to be the
redemption of fewer than all of the Securities of any series.
SECTION 14.2. Notice of Redemption; Selection of Securities. In case the
Issuer shall desire to exercise the right to redeem all or, as the case may be,
any part of the Securities of any series in accordance with their terms, it
shall fix a Redemption Date and shall provide notice of such redemption at least
30 days prior to such Redemption Date to the Trustee and to the Holders of
Securities of such series so to be redeemed as a whole or in part in the manner
provided in Section 13.4. The notice provided in the manner herein specified
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the CUSIP or other comparable number, the Place or Places of
Payment, that the Securities of such series are being redeemed at the option of
the Issuer pursuant to provisions contained in the terms of the Securities of
such series or in a supplemental indenture establishing such series, if such be
the case, together with a brief statement of the facts permitting such
redemption, that payment will be made upon presentation and surrender of the
applicable Securities at the Place or Places of Payment, that the Redemption
Price and any interest accrued to the Redemption Date will be paid as specified
in said notice, and that on and after said Redemption Date any interest thereon
or on the portions thereof to be redeemed will cease to accrue, and any
information that is required to be included therein by the Depository. If fewer
than all the Securities of any series are to be redeemed the notice of
redemption shall specify the numbers of the Securities of such series to be
redeemed. In case any Security of any series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the Redemption Date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued, or, in
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the case of Securities providing appropriate space for such notation, at the
option of the Holders the Trustee, in lieu of delivering a new Security or
Securities as aforesaid, may make a notation on such Security of the payment of
the redeemed portion thereof.
On or before the Redemption Date with respect to the Securities of any
series stated in the notice of redemption given as provided in this Section
14.2, the Issuer will deposit with the Trustee or with one or more Paying Agents
an amount of money (except as otherwise specified as contemplated by Section 3.1
for the Securities of such series) sufficient to redeem on such Redemption Date
all the Securities or portions thereof so called for redemption at the
applicable Redemption Price, together with accrued interest to such Redemption
Date. If the Issuer is acting as its own Paying Agent, it will segregate such
amount and hold it in trust as provided in Section 4.4.
If fewer than all the Securities of a series are to be redeemed (including
the redemption of fewer than all Securities having the same terms within a
series), the Issuer will give the Trustee written notice not less than 60 days
prior to the Redemption Date as to the aggregate principal amount of Securities
to be redeemed and the Trustee shall select, by lot or by such other method as
may be set forth in one or more indentures supplemental hereto, the Securities
of such series or portions thereof (in multiples of $1,000) to be redeemed.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
SECTION 14.3. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities of the series specified in such notice shall become due and payable
on the Redemption Date, and at the place or places stated in such notice at the
applicable Redemption Price, together with any interest accrued to such
Redemption Date, and on and after said Redemption Date (unless the Issuer shall
default in the payment of such Securities at the applicable Redemption Price,
together with any interest accrued to said Redemption Date) any interest on the
Securities or portion of Securities of any series so called for redemption shall
cease to accrue. On presentation and surrender of such Securities at a Place of
Payment in such notice specified, such Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable Redemption
Price, together with any interest accrued thereon to the applicable Redemption
Date, except that if such Redemption Date is an Interest Payment Date, interest
shall be paid as provided in Section 3.8.
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Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and make available for delivery to or
on the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
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ARTICLE XV.
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund Payment with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Issuer may at
its option, at any time but not less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Securities of such
series theretofore purchased or otherwise acquired by the Issuer, except
Securities of such series which have been redeemed through the application of
mandatory sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by an Issuer Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Issuer by way of bona fide sale or other negotiation for value;
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 mandatory sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Issuer will deliver to the Trustee a certificate signed by a Vice President, the
Treasurer or any Assistant Treasurer of the Issuer specifying the amount of the
next ensuing sinking fund payment for such series pursuant to the terms of such
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 15.2 and whether the
Issuer intends to exercise its rights to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall be irrevocable and
upon its delivery the Issuer shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the
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case of the failure of the Issuer to deliver such certificate (or to deliver the
Securities, if any, specified in such certificate within the time period
specified in Section 15.2), unless otherwise agreed by the Trustee, the sinking
fund payment due on the next succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit Securities as provided in
Section 15.2 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Issuer if the Issuer is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date following
the date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund
together with accrued interest, if any, to the applicable Redemption Date. Any
sinking fund moneys not so applied or allocated by the Trustee (or by the Issuer
if the Issuer is acting as its own Paying Agent) to the redemption of Securities
shall be added to the next sinking fund payment received by the Trustee (or if
the Issuer is acting as its own Paying Agent, segregated and held in trust as
provided in Section 4.4) for such series and, together with such payment (or
such amount so segregated), shall be applied in accordance with the provisions
of this Section 15.3. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if the Issuer is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 4.4) on the last sinking fund payment date with respect to Securities of
such series and not held for the payment or redemption of particular Securities
of such series shall be applied by the Trustee (or by the Issuer if the Issuer
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
14.2 and the Issuer shall cause notice of the redemption thereof to be given in
the manner provided in Section 14.2 except that the notice of redemption shall
also state that the Securities are being redeemed by operation of the sinking
fund and whether the sinking fund payment is mandatory or optional, or both, as
the case may be. Such notice having been duly given, the redemption of the
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Securities shall be made upon the terms and in the manner stated in Section
14.3.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee (or, if the Issuer is acting as its own Paying Agent, will segregate and
hold in trust as provided in Section 4.4) in cash a sum equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section.
Neither the Trustee nor the Issuer shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Issuer if the Issuer is acting
as its own Paying Agent) shall redeem such Securities if cash sufficient for
that purpose shall be deposited with the Trustee (or segregated by the Issuer)
for that purpose in accordance with the terms of this Article. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur and any moneys thereafter paid into
such sinking fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Securities of such series;
provided, however, that in case such Event of Default or default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date for the Securities of such series on which
such moneys may be applied pursuant to the provisions of this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.
IDACORP, INC.
By /s/ Xxxxxx Xxxxxxxx
______________________
Name: Xxxxxx Xxxxxxxx
Title: Vice President - Finance
& Treasurer
BANKERS TRUST COMPANY
By /s/ Xxxxx Xx
______________________
Name: Xxxxx Xx
Title: Vice President
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STATE OF IDAHO )
) ss.:
COUNTY OF ADA )
At Boise, ID, on this 28th day of February 2001, before me, a Notary Public
in and for the County of Ada and State of Idaho, personally appeared Xxxxxx
Xxxxxxxx, the V.P. - Finance & Treasurer, of IDACORP, Inc., to me personally
known, who executed the foregoing instrument on behalf of said corporation, and
acknowledged the same to be his free act and deed in his said capacity and the
free act and deed of IDACORP, Inc.
NOTARIAL SEAL
/s/ Xxxx Xxxx
----------------------------------
Notary Public
My Commission Expires: 7/17/2004
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