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EXHIBIT 4.2
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
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JUNIOR SUBORDINATED INDENTURE
Dated as of ___ __, 1998
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▇▇▇▇▇▇ TRUST AND SAVINGS BANK
as Trustee
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
___ __, 1998 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation and ▇▇▇▇▇▇ Trust and Savings
Bank, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)...................................................................6.09
(a)(2) ..................................................................6.09
(a)(3)....................................................................N/A
(a)(4)....................................................................N/A
(a)(5)...................................................................6.09
(b)..........................................................6.08, 6.10, 6.11
(c).......................................................................N/A
311(a) and (b)..............................................................6.13
(c).......................................................................N/A
312(a).............................................................4.01, 4.02(a)
(b)...................................................................4.02(b)
(c)...................................................................4.02(c)
313(a)...................................................................4.04(a)
(b)...................................................................4.04(a)
(c)...................................................................4.04(a)
(d)...................................................................4.04(b)
314(a)................................................................4.03, 3.05
(b).......................................................................N/A
(c)(1) and (2)...........................................................6.07
(c)(3)....................................................................N/A
(d) ......................................................................N/A
(e)......................................................................6.07
(f) ......................................................................N/A
315(a), (c) and (d).........................................................6.01
(b) .....................................................................5.09
(e) .....................................................................5.10
316(a)......................................................................1.01
(a)(1) ..................................................................5.08
(a)(2) ...................................................................N/A
(b) .....................................................................9.02
(c) .....................................................................7.01
317(a)(1) ..................................................................5.05
(a)(2) ..................................................................5.07
(b) .....................................................................6.05
318(a) ....................................................................13.08
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THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED.
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TABLE OF CONTENTS*
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions............................................1
Affiliate ..............................................................1
Authenticating Agent.....................................................1
Bankruptcy Law...........................................................1
Board of Directors.......................................................2
Board Resolution.........................................................2
Business Day.............................................................2
Commission ..............................................................2
Common Securities........................................................2
Common Stock.............................................................2
Company ..............................................................2
Company Request..........................................................2
Corporate Trust Office...................................................2
Custodian ..............................................................2
Debenture" or "Debentures................................................2
Declaration..............................................................3
Default ..............................................................3
Defaulted Interest.......................................................3
Definitive Debentures....................................................3
Depositary ..............................................................3
Event of Default.........................................................3
Exchange Act.............................................................3
FW Preferred Capital Trust...............................................3
Global Debenture.........................................................3
Guarantee Agreement......................................................3
Holder ..............................................................3
Indebtedness.............................................................4
Indenture ..............................................................4
Interest Payment Date....................................................4
Officer ..............................................................4
Officer's Certificate....................................................4
Opinion of Counsel.......................................................4
outstanding..............................................................4
Person ..............................................................5
Predecessor Debenture....................................................5
Preferred Securities.....................................................5
Principal Office of the Trustee..........................................5
Property Trustee.........................................................6
Responsible Officer......................................................6
Securities Act...........................................................6
Security Register........................................................6
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* This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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Senior Indebtedness......................................................6
Stated Maturity..........................................................6
Subsidiary ..............................................................6
Trust Indenture Act......................................................7
Trust Securities.........................................................7
Trustee ..............................................................7
U.S. Government Obligations..............................................7
ARTICLE II
DEBENTURES
SECTION 2.01. Forms Generally........................................7
SECTION 2.02 Form of Trustee's Certificate of
Authentication.........................................8
SECTION 2.03 Amount Unlimited; Issuable in Series...................8
SECTION 2.04 Denomination of Debentures............................10
SECTION 2.05. Execution and Authentication..........................10
SECTION 2.06. Global Debenture......................................11
SECTION 2.07. Transfer and Exchange.................................12
SECTION 2.08. Replacement Debentures................................12
SECTION 2.09. Temporary Debentures..................................13
SECTION 2.10. Cancellation..........................................13
SECTION 2.11. Defaulted Interest....................................14
SECTION 2.12. CUSIP Numbers.........................................15
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest..............................................15
SECTION 3.02. Offices for Notices and Payments, etc.................16
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office......................................16
SECTION 3.04. Provision as to Paying Agent..........................16
SECTION 3.05. Certificate to Trustee................................17
SECTION 3.06. Payment Upon Resignation or Removal...................18
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Holders' Lists........................................18
SECTION 4.02. Preservation and Disclosure of Lists..................18
SECTION 4.03. Reports by the Company................................20
SECTION 4.04. Reports by the Trustee................................21
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ARTICLE V
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.....................................22
SECTION 5.02. Payment of Debentures on Default; Suit
Therefor..............................................25
SECTION 5.03. Application of Moneys Collected by
Trustee...............................................27
SECTION 5.04. Proceedings by Holders................................28
SECTION 5.05. Proceedings by Trustee................................29
SECTION 5.06. Trustee May File Proofs of Claim......................29
SECTION 5.07. Remedies Cumulative and Continuing....................30
SECTION 5.08. Direction of Proceedings and Waiver of
Defaults by Majority of Holders.......................30
SECTION 5.09. Notice of Defaults....................................31
SECTION 5.10. Undertaking to Pay Costs..............................32
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee................32
SECTION 6.02. Reliance on Documents, Opinions, etc..................34
SECTION 6.03. No Responsibility for Recitals, etc...................36
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Debentures....................................36
SECTION 6.05. Moneys to be Held in Trust............................36
SECTION 6.06. Compensation and Expenses of Trustee..................37
SECTION 6.07. Officer's Certificate and Opinion of
Counsel as Evidence...................................37
SECTION 6.08. Conflicting Interest of Trustee.......................38
SECTION 6.09. Eligibility of Trustee................................38
SECTION 6.10. Resignation or Removal of Trustee.....................39
SECTION 6.11. Acceptance by Successor Trustee.......................41
SECTION 6.12. Succession by Merger, etc.............................42
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor..............................................42
SECTION 6.14. Authenticating Agents.................................42
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.....................................44
SECTION 7.02. Proof of Execution by Holders.........................44
SECTION 7.03. Persons Who May Be Deemed Absolute Owners.............45
SECTION 7.04. Debentures Owned by Company Deemed
Not Outstanding.......................................45
SECTION 7.05. Revocation of Consents; Future Holders
Bound.................................................46
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ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings..................................46
SECTION 8.02. Call of Meetings by Trustee...........................47
SECTION 8.03. Call of Meetings by Company or Holders................47
SECTION 8.04. Qualifications for Voting.............................47
SECTION 8.05. Regulations...........................................48
SECTION 8.06. Voting................................................48
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders............................49
SECTION 9.02. With Consent of Holders...............................51
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.....................52
SECTION 9.04. Notation on Debentures................................53
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished to Trustee..................53
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms.........................................53
SECTION 10.02. Successor Corporation to be
Substituted for Company...............................54
SECTION 10.03. Opinion of Counsel to be Given Trustee................55
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture................................55
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee...............................................56
SECTION 11.03. Paying Agent to Repay Moneys Held.....................56
SECTION 11.04. Return of Unclaimed Moneys............................56
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations...........................57
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debentures Solely
Corporate Obligations.................................58
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors............................................59
SECTION 13.02. Official Acts by Successor Corporation................59
SECTION 13.03. Surrender of Company Powers...........................59
SECTION 13.04. Addresses for Notices, etc............................60
SECTION 13.05. Governing Law.........................................60
SECTION 13.06. Business Days.........................................60
SECTION 13.07. Trust Indenture Act to Control........................60
SECTION 13.08. Table of Contents, Headings, etc......................61
SECTION 13.09. Execution in Counterparts.............................61
SECTION 13.10. Separability..........................................61
SECTION 13.11. Assignment............................................61
ARTICLE XIV
REDEMPTION OF DEBENTURES
SECTION 14.01. Applicability of Article..............................61
SECTION 14.02. Notice of Redemption; Selection of
Debentures............................................62
SECTION 14.03. Payment of Debentures Called for
Redemption............................................63
ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01. Agreement to Subordinate..............................64
SECTION 15.02. Default on Senior Indebtedness........................64
SECTION 15.03. Liquidation; Dissolution; Bankruptcy..................65
SECTION 15.04. Subrogation...........................................67
SECTION 15.05. Trustee to Effectuate Subordination...................68
SECTION 15.06. Notice by the Company.................................68
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness..........................................69
SECTION 15.08. Subordination May Not Be Impaired.....................70
SIGNATURES..............................................................71
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THIS JUNIOR SUBORDINATED INDENTURE, dated as of ___ __, 1998,
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a New York corporation (the "Company"), and
▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking corporation, as trustee (the
"Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Debentures
by the Holders thereof, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective Holders from time to time
of the Debentures, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
"Affiliate" shall have the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
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"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than (a) a day on which banking
institutions in the Borough of Manhattan, The City of New York and Chicago,
Illinois are authorized or required by law, regulation or executive order to
remain closed or (b) a day on which the Corporate Trust Office of the Trustee is
closed for business.
"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean the common beneficial ownership
interests in the assets of the applicable FW Preferred Capital Trust.
"Common Stock" shall mean the Common Stock, par value $1.00 per
share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Company" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a New York
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by the Chairman, the Chief Executive
Officer, the President, a Vice Chairman, a Vice President, the Comptroller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Corporate Trust Office" means, when used with respect to the
Trustee, the Principal Office of the Trustee.
"Custodian" shall mean any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
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"Debenture" or "Debentures" means any Debenture or Debentures, as
the case may be, authenticated and delivered under this Indenture.
"Declaration" shall mean with respect to an FW Preferred Capital
Trust, the Declaration of Trust, as amended, of such FW Preferred Capital Trust.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set forth in
Section 2.11.
"Definitive Debentures" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Debentures, The
Depository Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act or other
applicable statute or regulation, as designated by the Company.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"FW Preferred Capital Trust" shall mean each of FW Preferred Capital
Trust I and FW Preferred Capital Trust II, each a Delaware statutory business
trust, or any other similar trust created for the purpose of issuing Trust
Securities in connection with the issuance of Debentures under this Indenture.
"Global Debenture" shall mean, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Guarantee Agreement" means, with respect to any FW Preferred
Capital Trust, the Guarantee Agreement executed by the Company for the benefit
of the Holders of the Preferred Securities issued by such FW Preferred Capital
Trust, as modified, amended, or supplemented from time to time.
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"Holder" shall mean any Person in whose name at the time a
particular Debenture is registered on the Security Register kept by the Company
or the Trustee for that purpose in accordance with the terms hereof.
"Indebtedness" shall mean (i) every obligation of the Company for
money borrowed; (ii) every obligation of the Company evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of the Company with respect to letters of credit,
banker's acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of the Company; (vi) every obligation of the Company
for claims in respect of derivative products, including interest rate, foreign
exchange rate and commodity forward contracts, options and swaps and other
similar arrangements; and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, the Company has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" means, when used with respect to any series
of Debentures, the Stated Maturity of an installment of interest on such
Debentures.
"Officer" shall mean any of the Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Financial Officer, the
Secretary or an Assistant Secretary of the Company.
"Officer's Certificate" shall mean a certificate signed by an
Officer and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 6.07 if and to the extent required by the
provisions thereof.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be an employee of the Company, and who shall be reasonably acceptable to the
Trustee. Each such opinion shall include the statements provided for in Section
6.07 if and to the extent required by the provisions thereof.
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The term "outstanding" when used with reference to the Debentures,
shall mean, subject to the provisions of Section 7.04, as of any particular
time, all Debentures authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
(a) Debentures theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation or that have previously been cancelled;
(b) Debentures, or portions thereof, for the payment or prepayment
or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that, if such
Debentures, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been
given as set forth in Article XIV or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Debentures in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered
pursuant to the terms of Section 2.08 unless proof
satisfactory to the Company and the Trustee is presented that
any such Debentures are held by bona fide holders in due
course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt and as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" shall mean the preferred beneficial
ownership interests in the assets of the applicable FW Preferred Capital Trust.
"Principal Office of the Trustee", or other similar term, shall mean
the office or offices of the Trustee, at which
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at any particular time its corporate trust business shall be administered, and
which at the date hereof are located at c/o Harris Trust and Savings Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Property Trustee" shall mean the trustee acting as such Property
Trustee under the Declaration of such FW Preferred Capital Trust.
"Responsible Officer" shall mean any officer of the Trustee's
Corporate Trust Administration department with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Security Register" shall mean the list of Holders provided to the
Trustee pursuant to Section 4.01, or any security register maintained by a
security registrar for the Debentures appointed by the Company following the
execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.06(a).
"Senior Indebtedness" shall mean the principal of, premium, if any,
and interest on, all Indebtedness, whether outstanding on the date of execution
of this Indenture or hereafter created, assumed or incurred, except
Indebtedness that by its terms is expressly stated to be junior in right of
payment to, or to rank pari passu with, the Debentures, and any deferrals,
renewals or extensions of such Senior Indebtedness.
"Stated Maturity" means, when used with respect to any Debenture, or
any installment of principal thereof or interest thereon, the date specified in
such Debenture as the fixed date on which principal of such Debenture, or such
installment of principal or interest, is due and payable.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting
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stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trust Securities" shall mean the Common Securities and Preferred
Securities of the applicable FW Preferred Capital Trust.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns and, if at any time there is more than
one Person acting in such capacity hereunder, "Trustee" shall mean each such
Person acting as Trustee hereunder. The term "Trustee" as used with respect to a
particular series of the Debentures shall mean the trustee with respect to that
series.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or prepayable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a 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
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
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ARTICLE II
DEBENTURES
SECTION 2.01 Forms Generally.
The Debentures of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution and as set forth in an
Officer's Certificate of the Company or in one or more indentures supplemental
hereto, 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 may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
all as may, consistently herewith, be determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
The Definitive Debentures 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 Debentures, as evidenced by their execution of
such Debentures.
SECTION 2.02 Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Debentures shall be in
substantially the following form:
This is one of the Debentures of the series designated therein referred to
in the within-mentioned Indenture.
▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee
By:
---------------------------
Authorized Officer
SECTION 2.03 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is unlimited. The Debentures may be issued in
one or more series up to the aggregate principal amount of securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Debentures of any series, there shall be established in or
pursuant to a Board
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Resolution of the Company and set forth in an Officer's Certificate of the
Company or established in one or more indentures supplemental:
(i) the title of the Debentures of the series (which shall distinguish the
Debentures of the series from all other Debentures);
(ii) any limit upon the aggregate principal amount of the Debentures of
the series which may be authenticated and delivered under this Indenture (except
for Debentures authenticated and delivered upon registration of, transfer of, or
in exchange for, or in lieu of, other Debentures of the series pursuant hereto);
(iii) the date or dates on which the principal of and premium, if any, on
the Debentures of the series is payable;
(iv) the rate or rates at which the Debentures of the series shall bear
interest, if any, or the method by which such interest may be determined, the
date or dates from which such interest shall accrue, the Interest Payment Date
on which such interest shall be payable or the manner of determination of such
Interest Payment Dates and the record dates for the determination of holders to
whom interest is payable on any such Interest Payment Dates;
(v) the place or places where the principal of, premium, if any, and
interest on Debentures of the series shall be payable;
(vi) the right, if any, to extend the interest payment periods and the
duration of such extension;
(vii) the price or prices at which, the period or periods within which,
the event or events giving rise to, and the terms and conditions upon which
Debentures of the series may be redeemed, in whole or in part, at the option of
the Company, pursuant to any sinking fund or otherwise;
(viii) the obligation, if any, of the Company to redeem or purchase
Debentures 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,
Debentures of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(ix) if other than denominations of $25 and any integral multiple thereof,
the denominations in which Debentures of the series shall be issuable;
(x) any Events of Default with respect to the Debentures of a particular
series, if not set forth herein;
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(xi) the form of the Debentures of the series;
(xii) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debentures of such series;
(xiii) whether the Debentures of the series shall be issued in whole or in
part in the form of one or more Global Debentures and, in such case, the
Depositary for such Global Debenture or Global Debentures, and whether
beneficial owners of interests in any such Global Debentures may exchange such
interests for other Debentures of such series in the manner provided in Section
2.07, and the manner and the circumstances under which and the place or places
where any such exchanges may occur if other than in the manner provided in
Section 2.07, and any other terms of the series relating to the global nature of
the Global Debentures of such series and the exchange, registration or transfer
thereof and the payment of any principal, premium, if any, or interest thereon;
and
(xiv) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate of the Company setting forth the terms of the series.
SECTION 2.04 Denomination of Debentures.
The Debentures of each series shall be issuable as registered Debentures
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. Subject to Section 2.03(ix), the Debentures of such series
shall be issuable in the denominations of $25 and any integral multiple thereof.
The Debentures shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers of the Company executing
the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
SECTION 2.05 Execution and Authentication.
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Two Officers shall sign the Debentures for the Company by manual or
facsimile signature. If an Officer whose signature is on a Debenture no longer
holds that office at the time the Debenture is authenticated, the Debenture
shall nevertheless be valid.
A Debenture shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Debenture has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Debentures
shall be substantially as set forth in Section 2.02.
SECTION 2.06 Global Debenture.
(a) A Global Debenture with respect to any series may be
transferred, in whole but not in part, only to another nominee of the
Depositary, or to a successor Depositary selected or approved by the Company or
to a nominee of such successor Depositary.
(b) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon receipt of a Company Order, will authenticate and
make available for delivery Definitive Debentures, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global
Debenture or Global Debentures, in exchange for such Global Debenture or Global
Debentures. If there is an Event of Default, the Depositary shall have the right
to exchange the Global Debenture or Global Debentures for Definitive Debentures.
In addition, the Company may at any time determine that the Debentures of any
series shall no longer be represented by a Global Debenture. In the event of
such an Event of Default or such a determination, the Company shall execute, and
subject to this Section 2.06, the Trustee, upon receipt of an Officer's
Certificate evidencing such determination by the Company and a Company Order,
will authenticate and make available for delivery Definitive Debentures, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture or Global Debentures in exchange for
such Global Debenture or Global Debentures. Upon the exchange of the Global
Debenture or Global Debentures for such Definitive Debentures, in authorized
denominations, the Global Debenture or Global Debentures shall be cancelled by
the Trustee. Such Definitive Debentures issued in exchange for the Global
Debenture or Global Debentures shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
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from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Debentures to the Depositary
for delivery to the Persons in whose names such Definitive Debentures are so
registered.
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SECTION 2.07 Transfer and Exchange.
To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Debentures and
Global Debentures at the request of the Security Registrar. All Definitive
Debentures and Global Debentures issued upon any registration of transfer or
exchange thereof shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Debentures or Global Debentures surrendered upon such registration of
transfer or exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
The Company shall not be required to (i) issue, register the
transfer of, or exchange Debentures of any series during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
prepayment or any notice of selection of Debentures of such series for
prepayment under Article XIV hereof and ending at the close of business on the
day of such mailing; or (ii) register the transfer of or exchange any Debenture
of such series so selected for prepayment in whole or in part, except the
unredeemed portion of any Debenture being prepaid in part.
Prior to due presentment for the registration of a transfer of any
Debenture, the Trustee, the Company and any agent of the Trustee or the Company
may deem and treat the Person in whose name any Debenture is registered as the
absolute owner of such Debenture for the purpose of receiving payment of
principal of, premium, if any, and interest on such Debentures, and none of the
Trustee, the Company and any agents of the Trustee or the Company shall be
affected by notice to the contrary.
SECTION 2.08 Replacement Debentures.
If any mutilated Debenture is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by each of
them to save each of them harmless, then the Company shall issue and the Trustee
shall authenticate a replacement Debenture if the Trustee's requirements for
replacement of Debentures are met. An indemnity bond must be supplied by the
Holder that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any agent thereof or any
authenticating agent from any loss that any of them may suffer if
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a Debenture is replaced. The Company or the Trustee may charge for its expenses
in replacing a Debenture.
Every replacement Debenture is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Debentures duly issued hereunder.
SECTION 2.09 Temporary Debentures.
Pending the preparation of Definitive Debentures of any series, the
Company may execute, and upon receipt of a Company Order the Trustee shall
authenticate and make available for delivery, temporary Debentures of such
series that are printed, lithographed, typewritten, mimeographed or otherwise
reproduced, in any authorized denomination, substantially of the tenor of the
Definitive Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debentures may determine, as conclusively evidenced by their
execution of such Debentures.
If temporary Debentures of any series are issued, the Company shall
cause Definitive Debentures to be prepared without unreasonable delay. The
Definitive Debentures of such series shall be printed, lithographed or engraved,
or provided by any combination thereof, or in any other manner permitted by the
rules and regulations of any applicable securities exchange, all as determined
by the officers executing such Definitive Debentures. After the preparation of
Definitive Debentures of such series, the temporary Debentures of such series
shall be exchangeable for Definitive Debentures upon surrender of such temporary
Debentures at the office or agency maintained by the Company for such purpose
pursuant to Section 3.02 hereof, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Debentures of any series, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, in exchange therefor the same aggregate principal amount of Definitive
Debentures of such series of authorized denominations. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as Definitive Debentures.
SECTION 2.10 Cancellation.
Unless otherwise provided with respect to a series of Debentures,
all Debentures and coupons surrendered for payment, registration of transfer,
exchange, repayment or redemption shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee. All Debentures so delivered or
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time, deliver
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to the Trustee for cancellation any Debentures previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever,
and all Debentures so delivered shall be promptly cancelled by the Trustee. No
Debenture shall be authenticated in lieu of or in exchange for any Debenture
cancelled as provided in this Section, except as expressly permitted by this
Indenture or such Debentures. All cancelled Debentures or coupons held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and the Trustee shall deliver a certificate of such disposition to
the Company. The Company may not issue new Debentures to replace Debentures that
have been prepaid or paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.11 Defaulted Interest.
Any interest on any Debenture that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant regular record date by virtue of having been such Holder; and such
Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Debentures of any series to the Persons in whose names such Debentures (or
their respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Debenture and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each Holder at his
or her address as it appears in the Security Register, not less than 10
days prior to such special record date.
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Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Debentures (or
their respective Predecessor Debentures) are registered on such special
record date and shall be no longer payable pursuant to the following
clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.12 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of prepayment as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of a
prepayment and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such prepayment shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Debentures that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest on the Debentures of such series at
the place, at the respective times and in the manner provided herein and
established with respect to such Debentures. Except as may be provided in a
supplemental indenture hereto with respect to any series of Debentures, each
installment of interest on such Debentures may be paid by mailing checks for
such interest payable to the order of the Holder entitled thereto as they appear
in the Security Register.
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SECTION 3.02 Offices for Notices and Payments, etc.
So long as any Debentures of any series remain outstanding, the
Company will maintain (or cause to be maintained) in New York, New York an
office or agency where the Debentures of each such series may be presented for
payment, an office or agency where the Debentures of such series may be
presented for registration of transfer and for exchange as provided in this
Indenture and an office or agency where notices and demands to or upon the
Company in respect of the Debentures of each such series or of this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes shall be the
Principal Office of the Trustee. In case the Company shall fail to maintain any
such office or agency in New York, New York, or shall fail to give such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the Principal Office of the
Trustee.
In addition to any such office or agency, the Company may from time
to time designate one or more offices or agencies outside New York, New York,
where the Debentures may be presented for payment, registration of transfer and
for exchange in the manner provided in this Indenture, and the Company may from
time to time rescind such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any such office or
agency in New York, New York, for the purposes above mentioned. The Company will
give to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04 Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Debentures of any series, it will
cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section 3.04,
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(1) that it will hold all sums held by it as such agent for
the payment of the principal of, premium, if any, or
interest on the Debentures of such series (whether such
sums have been paid to it by the Company or by any other
obligor on the Debentures) in trust for the benefit of
the Holders thereof; and
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debentures
of such series) to make any payment of the principal of,
premium, if any, or interest on the Debentures of such
series when the same shall be due and payable.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of, premium, if any,
or interest on the Debentures of any series, set aside,
segregate and hold in trust for the benefit of the Holders a
sum sufficient to pay such principal, premium or interest so
becoming due and will notify the Trustee of any failure to
take such action and of any failure by the Company (or by any
other obligor under the Debentures) to make any payment of the
principal of, premium, if any, or interest on the Debentures
of such series when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Debentures of
any series hereunder, or for any other reason, pay or cause to
be paid to the Trustee all sums held in trust for such
Debentures by the Trustee or any paying agent hereunder, as
required by this Section 3.04, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this
Section 3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05 Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year of the Company, so long as Debentures of any series
are outstanding hereunder, an Officer's Certificate, one of the signers of which
shall be the
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principal executive, principal financial or principal accounting officer of the
Company, stating that in the course of the performance by the signers of their
duties as officers of the Company they would normally have knowledge of any
default by the Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof. For purposes of this Section 3.05, default shall be determined without
regard to any period of grace or requirement of notice provided for herein.
SECTION 3.06 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the date of such termination, removal or
resignation.
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01 Holders' Lists.
So long as Debentures of any series are outstanding hereunder, the
Company covenants and agrees that it will furnish or cause to be furnished to
the Trustee:
(a) on an annual basis on each alternating regular record date
commencing with the first such date for the Debentures of such
series a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
record date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
except that no such lists need be furnished so long as the
Trustee is in possession thereof by reason of its acting as
registrar for the Debentures.
SECTION 4.02 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the Holders (1)
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contained in the most recent list furnished to it as provided
in Section 4.01 or (2) received by it in the capacity of
registrar for the Debentures of such series (if so acting)
hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more Holders (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 Debenture 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 or with Holders of all Debentures of such series with
respect to their rights under this Indenture and is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall within 5 Business Days after the receipt of
such application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section 4.02,
or
(2) inform such applicants as to the approximate number of
Holders of all Debentures of such series, 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 4.02, and as to the
approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the
written request of such applicants, mail to each Holder whose
name and address appear in the information preserved at the
time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, 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
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to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five
Business Days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of such
series of Debentures or all Debentures of such series, as the
case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders
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, by receiving and holding Debentures,
agrees with the Company and the Trustee that neither the
Company 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 in
accordance with the provisions of subsection (b) of this
Section 4.02, 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 said subsection (b).
SECTION 4.03 Reports by the Company.
So long as Debentures of any series are outstanding hereunder:
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the date on which the Company is required
to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as
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said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to provide to the Trustee, such of the
supplementary and periodic information, documents and reports
which would have been required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on
a national securities exchange as may be prescribed from time
to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
Holders, as the names and addresses of such Holders appear
upon the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 4.03 as
may be required by rules and regulations prescribed from time
to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of
any information contained therein or determinable from
information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officer's
Certificates).
SECTION 4.04 Reports by the Trustee.
So long as Debentures of any series are outstanding hereunder:
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this
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Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15, commencing
May 15, 1999, deliver to Holders a brief report, dated as of
such May 15, which complies with the provisions of Section
313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange, if any, upon which the Debentures are listed,
with the Commission and with the Company. The Company will
promptly notify the Trustee when the Debentures are listed on
any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.01 Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder with respect to Debentures of a particular series
(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 specifically deleted or modified in a supplemental
indenture (or Board Resolution) under which such series of Debentures is issued
or in the form of Debentures for such series:
(a) default in the payment of any interest on the Debentures of
that series when due, and continuance of such default for a
period of 30 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance
with the terms hereof shall not constitute a default in the
payment of interest for this purpose; or
(b) default in the payment of any principal of or premium, if any,
on the Debentures of that series when due whether at maturity,
upon redemption, by declaration of acceleration of maturity or
otherwise; or
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(c) default in the performance, or breach, of any covenant or
warranty of the Company with respect to that series contained
in such Debentures or otherwise established with respect to
that series of Debentures pursuant to Section 2.01 or
contained in this Indenture (other than a covenant or warranty
a default in whose performance or a breach of which is
elsewhere in this Section 5.01 specifically dealt with and
other than a covenant or warranty set forth in terms of
another series of Debentures established or contemplated in
this Indenture), and continuance of such default or breach for
a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Debentures of
such series a written notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up
or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive
days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of
any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default (other than an Event of Default specified in
Section 5.01(d) or 5.01(e))with respect to Debentures of a particular series at
the time outstanding occurs and is continuing, then in every such case the
Trustee or the Holders
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of not less than 25% in aggregate principal amount of the Debentures of such
series then outstanding may declare the principal amount of all Debentures of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders of the outstanding
Debentures of such series), provided that, in the case of the Debentures of a
series issued to an FW Preferred Capital Trust, if, upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Debentures of such series fail to declare the principal of all the
outstanding Debentures of such series (or specified portion thereof) to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount (as defined in the related Declaration) of the related series
of Preferred Securities issued by such FW Preferred Capital Trust then
outstanding shall have the right to make such declaration by a notice in writing
to the Company and the Trustee; and upon any such declaration such principal
amount (or specified portion thereof) of and the accrued interest (including any
additional interest) on all the Debentures of such series shall become
immediately due and payable. If an Event of Default specified in Section 5.01(d)
or 5.01(e) with respect to Debentures of any series at the time outstanding
occurs, the principal amount of all the Debentures of such series (or, if the
Debentures of such series are Discount Debentures, such portion of the principal
amount of such Debentures as may be specified by the terms of that series) and
the accrued interest (including any additional interest) on all the Debentures
of such series shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and payable.
Payment of principal (and premium, if any) and interest (including any
additional interest) on such Debentures shall remain subordinated to the extent
provided in Article XV notwithstanding that such amount shall become
immediately due and payable as herein provided.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Debentures of a series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (A) all matured installments of interest upon all the
Debentures of that series and the principal of and premium, if any, on any and
all Debentures of that series 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 same rate as the rate of interest
specified in the Debentures of such series to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover compensation due to
the Trustee and each predecessor Trustee, their respective agents,
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attorneys and counsel, pursuant to Section 6.06, and (ii) any and all Events of
Default under this Indenture, other than the non-payment of the principal of the
Debentures of such series which shall have become due solely by such declaration
of acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in every such case, the Holders of a majority in aggregate
principal amount of the Debentures of that series then outstanding, by written
notice to the Company and to the Trustee, may rescind and annul such declaration
and its consequences.
In the case of Debentures of a series initially issued to an FW
Preferred Capital Trust, if the Holders of such Debentures fail to annul such
declaration and waive such default, the holders of a Majority in Liquidation
Amount of the Preferred Securities (as defined in the related Declaration)
issued by such FW Preferred Capital Trust shall also have the right to rescind
and annul such declaration and its consequences by written notice to the Company
and the Trustee, subject to the satisfaction of the conditions set forth in
Clauses (i) and (ii) above.
No such waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the Holders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceeding had been taken.
SECTION 5.02. Payment of Debentures on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Debentures of a series as
and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of or premium, if any, on any of the Debentures of a
series as and when the same shall have become due and payable, whether at
maturity of the Debentures of such series or upon prepayment or by declaration
or otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the Holders, the whole amount that then shall have
become due and payable on all such Debentures of such series for principal of,
premium, if any, or interest or both, as the case may be, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of such
interest is enforce-
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able under applicable law and, if the Debentures of such series are held by the
Trust or a trustee of such trust, without duplication of any other amounts paid
by the Trust or a trustee in respect thereof) upon the overdue installments of
interest at the rate borne by the Debentures of such series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any other amount due to the Trustee pursuant
to Section 6.06.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor on the
Debentures of such series and collect in the manner provided by law out of the
property of the Company or any other obligor on the Debentures of such series,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debentures of any
series under title 11 of the United States Code, or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debentures of such
series, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Debentures of a series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest owing and unpaid
in respect of the Debentures of such series and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due to the Trustee pursuant to Section 6.06) and of the
Holders allowed in such judicial proceedings relative to the Company or any
other obligor on the Debentures, or to the creditors or property of the Company
or such other obligor, unless prohibited by applicable law and regulations, to
vote on behalf of the Holders in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and
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to distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debentures of any series or the rights of any Holder or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Debentures of any series, may be prosecuted and enforced by
the Trustee without the possession of any of the Debentures of such series, or
the production thereof on any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Debentures of such series.
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, and it shall not be necessary to make any Holders parties to any such
proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the Debentures of the series in respect of
which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to the Debentures of such series and all other amounts due to the
Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XV;
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Third: In case the principal of the outstanding Debentures of such
series in respect of which moneys have been collected shall not have become due
and be unpaid, to the payment of the amounts then due and unpaid upon Debentures
of such series for principal of, premium, if any, and interest on the Debentures
of such series, in respect of which or for the benefit of which money has been
collected, ratably, without preference of priority of any kind, according to the
amounts due on the Debentures of such series for principal, premium, if any, and
interest, respectively; and
Fourth: To the Person or Persons entitled thereto.
SECTION 5.04. Proceedings by Holders.
No Holder of Debentures of any series shall have any right by virtue
of or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such Holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Debentures of such series specifying such Event of Default,
as hereinbefore provided, (ii) the Holders of not less than 25% in aggregate
principal amount of the Debentures of such series then outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, (iii) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, and (iv) no direction
inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority in principal amount of the
outstanding Debentures of such series, it being understood and intended, and
being expressly covenanted by the taker and Holder of every Debenture of such
series with every other taker and Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue of or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holder, 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.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder to receive payment of the principal of, premium, if any, and
interest on such Debenture of such series, on or after the same shall have
become due and payable, or to institute suit for the enforcement of any such
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payment, shall not be impaired or affected without the consent of such Holder.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Debentures of any
series 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 by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Debentures of any series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of any
such Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of such
Debentures and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 6.06) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders of such
Debentures, to pay to the Trustee any amount due to it for the reasonable
compensa-
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tion, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
of any series or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.07. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or to
the Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to the Debentures of any series, and no delay
or omission of the Trustee or of any Holder 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
default or an acquiescence therein; and, subject to the provisions of Section
5.04, every power and remedy given by this Article V or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by
Majority of Holders.
Subject to the provisions of any supplemental indenture hereto, the
Holders of a majority in aggregate principal amount of the Debentures of any
series 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; provided, however,
that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the Holders of
Debentures of such series not taking part in such direction, it being
understood that the Trustee shall have no duty or obligation to determine
whether or not such actions or forebearances would be unduly prejudicial to such
Holders, or if the Trustee being advised in writing by counsel determines that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trust-
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ees and/or Responsible Officers shall determine that the action or proceedings
so directed would likely involve the Trustee in personal liability. Prior to any
declaration accelerating the maturity of the Debentures of any series, the
Holders of a majority in aggregate principal amount of the Debentures of such
series at the time outstanding, and, in the case of any Debentures of a series
initially issued to an FW Preferred Capital Trust, the holders of a Majority in
Liquidation Amount of the Preferred Securities (as defined in the related
Declaration) issued by such FW Preferred Capital Trust may on behalf of the
Holders of all of the Debentures of such series waive any past default or Event
of Default and its consequences except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debentures of such series (unless
such default has been cured and a sum sufficient to pay all matured installments
of principal, premium, if any, and interest due otherwise than by acceleration
has been deposited with the Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of
the Holder of each Debenture affected. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the Holders of Debentures of such series shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 5.08, said default or Event of
Default shall for all purposes of such series of Debentures and this Indenture
be deemed to have been cured and to be not continuing.
SECTION 5.09. Notice of Defaults.
(a) The Trustee, within 90 days after the occurrence of a Default
with respect to a series of Debentures actually known to the Trustee, shall mail
to all Holders, as the names and addresses of such Holders appear upon the
Security Register, notice of all Defaults known to the Trustee, unless such
Default shall have been cured before the giving of such notice (the term
"Default" for the purpose of this Section 5.09 being hereby defined to be any of
the events specified in clauses (a), (b), (c), (d) and (e) of Section 5.01, not
including periods of grace, if any, provided for therein, and irrespective of
the giving of written notice specified in clause (c) of Section 5.01); and
provided that, except in the case of default in the payment of the principal of,
premium, if any, or interest on any series of Debentures, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders thereof; and provided further, that in
the case of any default of
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the character specified in Section 5.01(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
(b) Within five Business Days after the occurrence of any Event of
Default actually known to the Trustee, the Trustee shall transmit notice of such
Event of Default to all Holders of the affected series of Debentures as their
names and addresses appear on the Security Register, unless such Event of
Default shall have been cured or waived.
SECTION 5.10. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder by his or her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, 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 5.10 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in aggregate principal amount of any series of
Debentures outstanding, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any such Debenture against the Company on or after the same shall have become
due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the Holders of Debentures of any series issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to such series and after the curing or waiving of all Events of Default
with respect to such series which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case any such Event of Default 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 person would exercise or use under the circumstances in the conduct
of his or her own affairs.
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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
any series of Debentures and after the curing or waiving of
all Events of Default with respect to such series which may
have occurred,
(1) 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
(2) 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 certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible
Officers, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 5.08,
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
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powers, if there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, bond, note, debenture or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the
Company;
(c) before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and any written advice
or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered
omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders of any
series of Debentures, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the
Trustee reasonable and sufficient security or indemnity
against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (that has not been cured
or waived), to exercise such of the
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rights and powers vested in it by this Indenture, and to use
the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of any
outstanding series of Debentures; provided, however, 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 expense or liability
as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed by it with due care;
(h) the Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to a series of Debentures
unless (1) such default is a default under Sections 5.01(a)
and 5.01(b) of this Indenture, (2) a Responsible Officer shall
have actual knowledge of such Default or Event of Default or
(3) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other
obligor on the Debentures or by any Holder; as used herein,
the term "actual knowledge" means the actual fact or statement
of knowing, without any duty to make any investigation with
regard thereto;
(i) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith, without negligence or wilful
misconduct and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
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(j) the Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties
hereunder; and
(k) the permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in any series of Debentures
(except in the certificate of authentication of the Trustee or the
Authenticating Agent) shall be taken as the statements of the Company, and the
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Trustee and the Authenticating Agent make no
representations as to the legality, validity or sufficiency of this Indenture or
of any series of Debentures. The Trustee and the Authenticating Agent shall not
be accountable for the use or application by the Company of any Debentures or
the proceeds of any Debentures authenticated and delivered by the Trustee or the
Authenticating Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debentures.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any registrar for any series of Debentures, in its individual
or any other capacity, may become the owner or pledgee of such Debentures with
the same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or registrar for any such Debentures.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by
the Trustee or any paying agent with respect to any series of Debentures shall,
until used or applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent with respect to any
series of Debentures shall be under no liability with respect to any series of
Debentures for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company. So long as no Event of Default
with respect to any series of Debentures shall have occurred and be continuing,
all interest allowed on any such moneys relating to such series of Debentures
shall be paid from time to time upon the written order of the Company, signed by
the Chairman of the Board of Directors, the President, Chief Financial Officer,
a
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Vice President, Controller, an Assistant Controller or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of Debentures under this Indenture,
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing between
the Company and the Trustee (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or willful misconduct. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or willful
misconduct on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against or investigating any claim of liability in
the premises. The obligations of the Company under this Section 6.06 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debentures of any series 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 Debentures of any series.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the defeasance or other termination of this
Indenture.
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SECTION 6.07. Officer's Certificate and Opinion of Counsel as
Evidence.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Officer's
Certificate required by Section 3.05) shall include:
(i) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether or not in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia, or a corporation or other
Person permitted
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to act as trustee by the Commission authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000) and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 6.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all
series of Debentures by giving written notice of such
resignation to the Company and by mailing notice thereof to
the Holders of the affected series of Debentures at their
addresses as they shall appear on the Security Register. Upon
receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument, in duplicate,
one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and shall have
accepted such appointment within 60 days after the mailing of
such notice of resignation to the affected Holders, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or
any Holder who has been a bona fide holder of a Debenture of
any affected series for at least six months may, subject to
the provisions of Section 5.10, 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.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the
Company or by any Holder who has been a bona fide holder
of a Debenture of any affected series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to
resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in
duplicate, 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 5.10, any Holder who
has been a bona fide holder of a Debenture of any affected
series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. 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
Debentures of any series at the time outstanding may at any
time remove the Trustee with respect to that series and
nominate a successor trustee, which shall be deemed appointed
as successor trustee unless within 10 days after such
nomination the Company objects thereto, or if no successor
trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case
the Trustee so removed or any Holder of a Debenture of such
se-
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▇▇▇▇, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.10 provided, may petition
any court of competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this
Section 6.10 shall become effective only upon the acceptance
of such appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the Holders of the affected series of Debentures at their
addresses as they shall appear on the Security Register. If the Company fails to
mail such notice within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
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SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case, at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, Debentures of any series 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
Debentures so authenticated; and in case at that time any Debentures of any
series shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificates
shall have the full force which such Debentures or this Indenture elsewhere
provides that the certificate of authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Debentures in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent required thereby.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents with respect to a
series of Debentures appointed by the Trustee upon the request of the Company
with power to act on its behalf and subject to its direction in the
authentication and delivery of Debentures of any such series issued upon
exchange or transfer thereof as fully to all intents and purposes as though any
such Authenticating Agent had been expressly authorized to authenticate and
deliver such Debentures; provided, that the Trustee shall have no liability to
the Company for any acts or omissions of the Authenticating Agent with respect
to the authentication and delivery of Debentures of any such series. Any such
Authenticating Agent shall at all times be a corporation organized and
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doing business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Holders as the names and addresses of such Holders appear on
the Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
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ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Debentures 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 such Holders in person or by
agent or proxy appointed in writing, or (b) by the record of such Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such Holders.
If the Company shall solicit from the Holders of Debentures of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officer's
Certificate, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Debentures of any
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the outstanding Debentures of any such series shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Holders of Debentures of any such series on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Holders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of
the execution of any instrument by a Holder or his or her agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee. The ownership of Debentures shall be proved by the
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Security Register or by a certificate of the Security Registrar. The Trustee may
require such additional proof of any matter referred to in this Section as it
shall deem necessary.
The record of any Holders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03. Persons Who May Be Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Debenture of any series, the Company, the Trustee, any Authenticating Agent, any
paying agent, any transfer agent and any registrar for the Debentures of any
such series may deem the person in whose name such Debenture shall be registered
upon the Security Register to be, and may treat him as, the absolute owner of
such Debenture (whether or not such Debenture shall be overdue) for the purpose
of receiving payment of or on account of the principal of and premium, if any,
and (subject to any applicable provisions of any supplement hereto) interest on
such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent
nor any registrar for the Debentures of any such series shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his or her order 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 any such Debenture.
SECTION 7.04. Debentures Owned by Company Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate
principal amount of Debentures of any series have concurred in any direction,
consent or waiver under this Indenture, Debentures of such series that are
owned by the Company or any other obligor on the Debentures of such series or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any other obligor on the
Debentures shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; provided that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Debentures which a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded. Debentures so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.04 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Debentures and that the pledgee is not the
Company or any such other obligor or Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any such other
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obligor. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debentures of any series
specified in this Indenture in connection with such action, any Holder (or
Holder of any Debenture issued in whole or in part in exchange or substitution
therefor), subject to Section 7.01, of a Debenture the serial number of which is
shown by the evidence to be included in the group of Debentures the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its principal office and upon proof of holding as provided in Section
7.02, revoke such action so far as concerns such Debenture (or so far as
concerns the principal amount represented by any exchanged or substituted
Debenture). Except as aforesaid any such action taken by any Holder shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Debenture, and of any Debenture issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debenture or any Debenture issued in exchange or substitution
therefor.
ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Holders of Debentures of any series may be called at
any time and from time to time pursuant to the provisions of this Article VIII
for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, 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 of
Debentures of such series pursuant to any of the provisions
of Article V;
(b) to remove the Trustee with respect to such series and nominate
a successor trustee pursuant to the provisions of Article VI;
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(c) to consent to the execution of an indenture or indentures
supplemental hereto with respect to such series pursuant to
the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of Debentures of such series of any
specified aggregate principal amount of such Debentures under
any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Debentures
of any series to take any action specified in Section 8.01, to be held at such
time and at such place in New York, New York, as the Trustee shall determine.
Notice of every meeting of such Holders, 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 mailed to such Holders at their addresses as they shall
appear on the Security Register. Such notice shall be mailed not less than 20
nor more than 60 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of the
Board of Directors, or the Holders of at least 10% in aggregate principal amount
of the Debentures of any particular series then outstanding, shall have
requested the Trustee to call a meeting of Holders of Debentures of such series,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Holders may determine the time and the place in New York, New York for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of any series of
Debentures a Person shall (a) be a Holder of one or more Debentures of such
series or (b) a Person appointed by an instrument in writing as proxy by any
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 Company and its counsel.
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SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Debentures 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
Company or by Holders as provided in Section 8.03, in which case the Company 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 the provisions of Section 8.04, at any meeting each
Holder or proxy therefor shall be entitled to one vote for each $25 principal
amount of Debentures of the affected series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debenture 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 Debentures of the affected series held by
him or instruments in writing as aforesaid duly designating him as the person to
vote on behalf of other Holders. Any meeting of Holders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of Holders
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 Debentures held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record 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
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showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debentures 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 Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may from time to time and at any time
amend this Indenture, without the consent of the Holders of Debentures of any
affected series then outstanding, for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company,
or successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of the
Company pursuant to Article X hereof;
(b) to add to the covenants of the Company or to surrender any
right or power herein conferred to the Company, such further
covenants, restrictions, conditions or surrender of rights or
power by the Company for the protection of the Holders of the
Debentures of such series as the Board of Directors and the
Trustee shall consider to be for the protection of such
Holders, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default
with respect to such series of Debentures permitting the
enforcement of all or any of the remedies provided in this
Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or
condition such amendment may provide for a particular period
of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may
limit the
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remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Debentures
of any series with coupons (including Debentures registerable
as to principal only) and to provide for exchangeability of
such Debentures with the Debentures of such series issued
hereunder in fully registered form and to make all appropriate
changes for such purpose;
(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; provided that any such
action shall not materially adversely affect the interests of
the Holders of Debentures of such series;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to such series
of Debentures;
(f) to make provision for transfer procedures, certification,
book-entry provisions and all other matters required pursuant
to this Indenture or otherwise necessary, desirable or
appropriate in connection with the issuance of such series of
Debentures; provided that any such action shall not
materially adversely affect the interests of the Holders of
such series of Debentures;
(g) to qualify or maintain qualification of this Indenture under
the Trust Indenture Act; or
(h) to make any change that does not adversely affect the rights
of any such Holder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Any amendment to this Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of Debentures of the series affected at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Holders.
With the consent (evidenced as provided in Section 7.01) of the
Holders of a majority in aggregate principal amount of the Debentures of all
series at the time outstanding affected by such amendment (voting as one class),
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time amend this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of any
such series; provided, however, that no such amendment shall, without the
consent of the Holders of each Debenture of each series then outstanding and
affected thereby (i) change the Stated Maturity of any such Debenture, or reduce
the rate or extend the time of payment of interest thereon (except as
contemplated by any Supplemental Indenture entered into in accordance with the
provisions of Article IX hereof), or reduce the principal amount thereof, or
reduce any amount payable on prepayment thereof, or make the principal thereof
or any interest or premium thereon payable in any coin or currency other than
that provided in such Debentures, or impair or affect the right of any Holder
thereof to institute suit for payment thereof, (ii) reduce the aforesaid
percentage of Debentures of any series, the Holders of which are required to
consent to any such amendment, this Indenture, or (iii) modify any of the
provisions of this Section 9.02 or Section 5.08 except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Debenture
affected thereby; provided, however, that if any series of Debentures are held
by a Property Trustee of an FW Preferred Capital Trust, such amendment shall not
be effective until the holders of a Majority in Liquidation Amount (as defined
in the related Declaration) of Trust Securities of such FW Preferred Capital
Trust shall have consented to such amendment; provided, further, that if the
consent of the Holders of each outstanding Debenture of any series is required,
such amendment shall not be effective until each holder of the Trust Securities
of such FW Preferred Capital Trust owning such Debentures shall have consented
to such amendment.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Debentures or any corresponding
series of Preferred Securities of an FW Preferred Capital Trust that holds the
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Debentures of any series, or that modifies the rights of the Holders of
Debentures of such series or holders of such Preferred Securities of such
corresponding 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 or holders of Preferred Securities of any other
series.
It shall not be necessary for any act of Holders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such act shall approve the substance thereof.
Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture effecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
the affected Holders as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Holders of the affected series of Debentures as their names
and addresses appear upon the Security Register. Any failure of the Trustee to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of
this Article IX shall comply with the Trust Indenture Act. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Debentures of each series
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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.
SECTION 9.04. Notation on Debentures.
Debentures of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article IX may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debentures of such series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debentures of such series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may request and shall receive an Officer's Certificate and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any Debentures of any
series shall prevent (i) any consolidation or merger of the Company with or into
any other Person (whether or not affiliated with the Company, as the case may
be), or successive consolidations or mergers in which the Company or its
successor or successors, as the case may be, shall be a party or parties, or
(ii) prevent any sale, conveyance, transfer or lease of the property of the
Company, or its successor or successors as the case may be, as an entirety, or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company, or its successor or successors, as the case may be) authorized
to acquire and operate the same; provided, that (a) the Company is the surviving
Person, or the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to
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which such sale, conveyance, transfer or lease of property is made is a Person
organized and existing under the laws of the United States or any state thereof
or the District of Columbia, and (b) upon any such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal of,
premium, if any and interest on the Debentures of each series then outstanding
according to their tenor and the due and punctual performance and observance of
all the covenants and conditions of this Indenture to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
Person formed by such consolidation, or into which the Company shall have been
merged, or by the Person which shall have acquired such property, as the case
may be, and (c) after giving effect to such consolidation, merger, sale,
conveyance, transfer or lease, no Default or Event of Default with respect to
any series of Debentures shall have occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted for Company.
In case of any such consolidation, merger, conveyance or transfer
and upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the obligation of due and punctual payment of the principal of, premium, if
any, and interest on all of the Debentures and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Debentures. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, any
or all of the Debentures of any series issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate
and deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee or the Authenticating
Agent for authentication, and any Debentures which such successor Person
thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Debentures so issued shall in all
respects have the same legal
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rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may request and shall receive an Opinion of Counsel and/or an Officer's
Certificate as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or lease, and any assumption, permitted or required by the
terms of this Article X complies with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation
all Debentures of any series theretofore authenticated (other than any
Debentures of such series which shall have been destroyed, lost or stolen and
which shall have been replaced as provided in Section 2.08) and not theretofore
cancelled, or (b) all the Debentures of any series outstanding hereunder not
theretofore cancelled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for prepayment within one year under arrangements
satisfactory to the Trustee for the giving of notice of prepayment, and the
Company shall deposit with the Trustee, in trust, an amount in cash or U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or a combination
thereof sufficient to pay on the Stated Maturity or upon prepayment all of the
Debentures of such series (other than any such Debentures which shall have been
destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.08) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal, premium, if any, and interest due or to
become due to the Stated Maturity or prepayment date, as the case may be, but
excluding, however, the amount of any moneys for the payment of principal of,
premium, if any, or interest on the Debentures (1) theretofore repaid to the
Company in accordance with the provisions of Section 11.04, or (2) paid to any
state or to the District of Columbia pursuant to its unclaimed property or
similar laws, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.05, 2.07,
2.08, 3.01, 3.02, 3.05, 6.06, 6.10 and 11.04 hereof, which
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shall survive until such Debentures shall mature and be paid. Thereafter,
Sections 6.06, 6.10 and 11.04 shall survive, and the Trustee, on demand of the
Company accompanied by any Officer's Certificate and an Opinion of Counsel and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Debentures.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the Holders of the particular series of Debentures for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.01 or 11.05 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of outstanding Debentures of the
affected series.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys
then held by any paying agent of the Debentures of any series (other than the
Trustee) shall, upon written demand of the Company, 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 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of, premium, if any, or interest on any Debentures
of any series and not applied but remaining unclaimed by the Holders thereof for
two years after the date upon which the principal of, premium, if any, or
interest on such Debentures, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
written demand; and the Holder of any such Debentures shall thereafter look only
to the Company for any
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payment which such Holder may be entitled to collect and all liability of the
Trustee or such paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to any series of Debentures on the 91st
day after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance
Agent (as defined below) as trust funds in trust,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Debentures
of such series (i) money in an amount, or (ii) U.S.
Government Obligations, maturing as to principal and
interest at such times and in such amounts as will
insure the availability of cash, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with
respect to (ii) and (iii)) of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee
and the Defeasance Agent, if any, to pay and discharge
each installment of principal of, premium, if any, and
interest on the outstanding Debentures of such series on
the dates such installments of principal, premium or
interest are due;
(2) if the Debentures of such series are then listed on any
national securities exchange, the Company shall have
delivered to the Trustee and the Defeasance Agent, if
any, an Opinion of Counsel to the effect that the
exercise of the option under this Section 11.05 would
not cause such Debentures to be delisted from such
exchange;
(3) no Default or Event of Default with respect to the
Debentures of such series shall have occurred and be
continuing on the date of such deposit; and
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the
effect that Holders of the Debentures of such series
will not recognize income, gain or loss for United
States federal income tax purposes as a result of the
exercise of the option under this Section 11.05 and will
be subject to
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United States federal income tax on the same amount and
in the same manner and at the same times as would have
been the case if such option had not been exercised.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debentures of such series and to have satisfied all the obligations under this
Indenture relating to the Debentures of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of the Debentures of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of, premium, if any, and interest on such Debentures when such
payments are due; (B) the Company's obligations with respect to such Debentures
under Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act hereunder. In the event such
a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(1) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting
forth such Defeasance Agent's rights and responsibilities;
(2) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U. S.
Government Obligations to meet the applicable conditions set
forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debentures Solely Corporate
Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest on any Debenture of any series, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture, or in any Debenture of
any series, or because of the creation of any indebtedness repre-
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sented thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
Person to the Company, either directly or through the Company or any successor
Person to the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors, as such of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Debentures
of any series or coupons, or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Debentures
of any series or coupons, or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Debentures.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and
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delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company, as the case may be, and as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders on
the Company may be given or served by being deposited postage prepaid by first
class mail, registered or certified mail, overnight courier service or
conformed telecopy addressed (until another address is filed by the Company with
the Trustee for the purpose) to the Company at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇. Any notice, direction,
request or demand by any Holder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of the Trustee, ▇▇▇▇▇▇ Trust and Savings Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration (unless another address is provided by the Trustee to the Company
for such purpose). Any notice or communication to a Holder shall be mailed by
first class mail to his or her address shown on the Security Register.
SECTION 13.05. Governing Law.
This Indenture and each Debenture shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflicts of laws principles thereof.
SECTION 13.06. Business Days.
In any case where the date of payment of principal of, premium, if
any, or interest on the Debentures will not be a Business Day, the payment of
such principal of, premium, if any, or interest on the Debentures need not be
made on such date but may be made on the next succeeding Business Day, with the
same force and effect as if made on the date of payment and no interest shall
accrue for the period from and after such date, except that if such next
succeeding Business Day falls in the next succeeding calendar year, then such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
SECTION 13.07. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such
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imposed duties shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 13.08. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.09. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
SECTION 13.10. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debentures shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
the Debentures, but this Indenture and the Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.11. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
ARTICLE XIV
REDEMPTION OF DEBENTURES
SECTION 14.01. Applicability of Article.
Debentures of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with
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their terms and, except as contemplated by Section 2.03 for Debentures of any
series, in accordance with this Article.
SECTION 14.02. Notice of Redemption; Selection of Debentures.
In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of the Debentures of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the Trustee and to the Holders of Debentures of
such series to be so redeemed as a whole or in part at their last addresses as
the same appear on the Security Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debenture of any series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture of such series.
Each such notice of redemption shall specify the CUSIP number of the
Debentures of such series to be redeemed, the date fixed for redemption, the
redemption price at which the Debentures of such series are to be redeemed (or
the method by which such redemption price is to be calculated), the place or
places of payment that payment will be made upon presentation and surrender of
the Debentures of such series, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debentures of a series are to be redeemed, the
notice of redemption shall specify the numbers of the Debentures of such series
to be redeemed. In case any Debenture of a 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 date fixed for
redemption, upon surrender of such Debenture, a new Debenture or Debentures of
such series in principal amount equal to the portion thereof that has not been
redeemed will be issued.
By 10:00 a.m. New York, New York time on the redemption date
specified in the notice of redemption given as provided in this Section 14.02,
the Company will deposit with the Trustee or with one or more paying agents an
amount of money sufficient to redeem on the redemption date all the Debentures
so called for redemption at the appropriate Redemption Price, together with
accrued interest to the date fixed for redemption.
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The Company will give the Trustee notice not less than 45 days prior
to the redemption date (unless a shorter notice is acceptable to the Trustee) as
to the aggregate principal amount of Debentures to be redeemed and the Trustee
shall select, in such manner as in its sole discretion it shall deem appropriate
and fair, the Debentures or portions thereof to be redeemed.
SECTION 14.03. Payment of Debentures Called for Redemption.
If notice of redemption has been given as provided in Section 14.02,
the Debentures or portions of Debentures of any series with respect to which
such notice has been given shall become due and payable on the date and at the
place or places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption (subject to the
rights of Holders at the close of business on a regular record date in respect
of an Interest Payment Date occurring on or prior to the redemption date), and
on and after said date (unless the Company shall default in the payment of such
Debentures at the Redemption Price, together with interest accrued to said date)
interest on such Debentures or portions of Debentures so called for redemption
shall cease to accrue. On presentation and surrender of such Debentures at a
place of payment specified in said notice, the said Debentures or the specified
portions thereof shall be redeemed by the Company at the applicable Redemption
Price, together with interest accrued thereon to the date fixed for redemption
(subject to the rights of Holders on the close of business on a regular record
date in respect of an Interest Payment Date occurring on or prior to the
redemption date).
Upon presentation of any Debenture of a series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a
new Debenture or Debentures of such series of authorized denominations, in
principal amount equal to the portion of the Debenture so presented that has
not been redeemed.
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ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Debentures
issued hereunder likewise covenants and agrees, that the Debentures shall be
issued subject to the provisions of this Article XV; and each Holder, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment by the Company of the principal of, premium, if any,
and interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
redemption payments) of, premium, if any, or interest on the Debentures of any
series or any other amounts which may be due on such Debentures pursuant to the
terms hereof or otherwise until the holders of all Senior Indebtedness
outstanding at the time of such acceleration shall receive payment in full of
such Senior Indebtedness (including any amounts due upon acceleration).
In the event of the acceleration of the maturity of the Debentures
of any series, then no payment shall be made by the Company with respect to the
principal (including redemption payments) of, premium, if any, or interest on
such Debentures (including any other amounts which may be due on such Debentures
pursuant to the terms hereof or otherwise) until the holders of all Senior
Indebtedness outstanding at the time of such acceleration shall receive payment
in full of such Senior Indebtedness (including any amounts due upon
acceleration).
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraphs of this Section
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15.02, such payment shall be held in trust for the benefit of, and shall be paid
over or delivered, by the Trustee (if the Notice required by Section 15.06 has
been received by the Trustee) or by the Holder, to the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness, and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Indebtedness of the Company shall
first be paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account of the
principal of, premium, if any, or interest on Debentures of any series
(including any other amounts which may be due on such Debentures pursuant to the
terms hereof or otherwise); and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, which the Holders or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article XV, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders or by the
Trustee under this Indenture if received by them or it, directly to the holders
of Senior Indebtedness of the Company (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders or to
the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or
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character prohibited by the foregoing, whether in cash, property or securities,
shall be received by the Trustee before all Senior Indebtedness is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all such Senior Indebtedness in full in
money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Debentures of any series to the payment of Senior Indebtedness that may
at the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the sale, conveyance, transfer or lease of its property as an
entirety, or substantially as an entirety, to another Person upon the terms and
conditions provided for in Article X of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 15.03 if such other Person shall, as a part of such consolidation,
merger, sale, conveyance, transfer or lease, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 15.02 or in this Section
15.03 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Holders of Debentures of any series shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of, premium, if
any, and interest on the Debentures of such series shall be paid in full;
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and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which
the Holders or the Trustee would be entitled except for the provisions of this
Article XV, and no payment over pursuant to the provisions of this Article XV to
or for the benefit of the holders of such Senior Indebtedness by Holders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the Holders, be deemed to be a payment
by the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the Holders, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture
or in the Debentures of any series is intended to or shall (i) impair, as
between the Company, its creditors other than the holders of Senior Indebtedness
of the Company, and the Holders of Debentures of any series, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of
Debentures of any series the principal of, premium, if any, and interest on such
Debentures as and when the same shall become due and payable in accordance with
their terms, or (ii) affect the relative rights of such Holders and creditors of
the Company, as the case may be, other than the holders of Senior Indebtedness
of the Company, as the case may be, nor shall anything herein or therein prevent
the Trustee or any such Holder from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article XV of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company, as the case may be,
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee, subject to the provisions of Article VI of
this Indenture, and the Holders of Debentures of any series shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to such Holders, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
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Each Holder by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures of any series pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures of any series pursuant to the provisions
of this Article XV, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on a written notice delivered
to it by a Person representing himself to be a holder of Senior Indebtedness of
the Company (or a trustee on behalf of such holder), as the case may be, to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution
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and any other facts pertinent to the rights of such Person under this Article
XV, and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee and the Holders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XV.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders, the Company or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this Article
XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
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SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness
of the Company to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company, as the case may be, or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company, as the case may be,
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of Debentures of any series, without incurring responsibility to such
Holders and without impairing or releasing the subordination provided in this
Article XV or the obligations hereunder of such Holders to the holders of such
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement under
which such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, as the case may be, and any other
Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:
-----------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
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