1
EXHIBIT 4.3
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AMERICAN FINANCIAL GROUP, INC.
and
STAR BANK, N.A.,
Trustee
INDENTURE
Dated as of _____________, 1997
Senior Debt Securities
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 Compliance Certificates and Opinions.....................................................9
SECTION 1.3 Form of Documents Delivered to Trustee..................................................10
SECTION 1.4 Acts of Holders.........................................................................10
SECTION 1.5 Notices, Etc., to Trustee and Company...................................................11
SECTION 1.6 Notice to Holders; Waiver...............................................................12
SECTION 1.7 Conflict with Trust Indenture Act.......................................................13
SECTION 1.8 Effect of Headings and Table of Contents................................................13
SECTION 1.9 Successors and Assigns..................................................................13
SECTION 1.10 Separability Clause.....................................................................13
SECTION 1.11 Benefits of Indenture...................................................................13
SECTION 1.12 Governing Law...........................................................................13
SECTION 1.13 Non-Business Day........................................................................13
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors..................................................................14
ARTICLE 2 DEBT SECURITY FORM.....................................................................................14
SECTION 2.1 Form of Debt Securities.................................................................14
SECTION 2.2 Form of Trustee's Certificate of
Authentication..........................................................................15
SECTION 2.3 Debt Securities in Global Form..........................................................16
ARTICLE 3 THE DEBT SECURITIES....................................................................................16
SECTION 3.1 Title; Payment and Terms................................................................16
SECTION 3.2 Denominations...........................................................................19
SECTION 3.3 Execution, Authentication, Delivery and
Dating..................................................................................19
SECTION 3.4 Temporary Debt Securities and Exchange of
Debt Securities.........................................................................21
SECTION 3.5 Registration, Registration of Transfer and
Exchange................................................................................22
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt
Securities..............................................................................25
SECTION 3.7 Payment of Interest; Interest Rights
Preserved...............................................................................26
SECTION 3.8 Persons Deemed Owners...................................................................28
SECTION 3.9 Cancellation............................................................................28
SECTION 3.10 Computation of Interest.................................................................28
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ARTICLE 4 SATISFACTION AND DISCHARGE.............................................................................29
SECTION 4.1 Satisfaction and Discharge of Debt
Securities of any Series................................................................29
SECTION 4.2 Application of Trust Money..............................................................31
SECTION 4.3 Satisfaction and Discharge of Indenture.................................................32
SECTION 4.4 Reinstatement...........................................................................32
ARTICLE 5 REMEDIES...............................................................................................33
SECTION 5.1 Events of Default.......................................................................33
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment...............................................................................36
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..................................................................37
SECTION 5.4 Trustee May File Proofs of Claim........................................................38
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Debt Securities......................................................................39
SECTION 5.6 Application of Money Collected..........................................................39
SECTION 5.7 Limitation on Suits.....................................................................40
SECTION 5.8 Unconditional Right of Holders to Receive
Principal (and Premium, if any) and Interest,
if any..................................................................................41
SECTION 5.9 Restoration of Rights and Remedies......................................................41
SECTION 5.10 Rights and Remedies Cumulative..........................................................41
SECTION 5.11 Delay or Omission Not Waiver............................................................42
SECTION 5.12 Control by Holders......................................................................42
SECTION 5.13 Waiver of Past Defaults.................................................................42
SECTION 5.14 Waiver of Stay or Extension Laws........................................................43
SECTION 5.15 Undertaking for Costs...................................................................43
ARTICLE 6 THE TRUSTEE............................................................................................44
SECTION 6.1 Certain Duties and Responsibilities.....................................................44
SECTION 6.2 Notice of Defaults......................................................................45
SECTION 6.3 Certain Rights of Trustee...............................................................45
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debt Securities.........................................................................46
SECTION 6.5 May Hold Debt Securities................................................................47
SECTION 6.6 Money Held in Trust.....................................................................47
SECTION 6.7 Compensation and Reimbursement..........................................................47
SECTION 6.8 Disqualification; Conflicting Interests.................................................48
SECTION 6.9 Corporate Trustee Required, Different
Trustees for Different Series; Eligibility..............................................48
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SECTION 6.10 Resignation and Removal; Appointment of
Successor...............................................................................49
SECTION 6.11 Acceptance of Appointment by Successor..................................................50
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business..................................................................52
SECTION 6.13 Preferential Collection of Claims Against
Company.................................................................................52
SECTION 6.14 Authenticating Agents...................................................................53
ARTICLE 7 HOLDERS' REPORTS BY TRUSTEE AND COMPANY................................................................54
SECTION 7.1 Preservation of Information; Company to
Furnish Trustee Names and Addresses of Holders..........................................54
SECTION 7.2 Communications to Holders...............................................................55
SECTION 7.3 Reports by Trustee......................................................................55
SECTION 7.4 Reports by Company......................................................................55
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..........................................................55
SECTION 8.1 Company May Consolidate, Etc., Only on
Certain Terms...........................................................................55
SECTION 8.2 Successor Corporation Substituted.......................................................56
ARTICLE 9 SUPPLEMENTAL INDENTURES................................................................................57
SECTION 9.1 Supplemental Indentures Without Consent of
Holders.................................................................................57
SECTION 9.2 Supplemental Indentures With Consent
of Holders..............................................................................58
SECTION 9.3 Execution of Supplemental Indentures....................................................60
SECTION 9.4 Effect of Supplemental Indentures.......................................................60
SECTION 9.5 Conformity With Trust Indenture Act.....................................................60
SECTION 9.6 Reference in Debt Securities to Supplemental
Indentures..............................................................................60
ARTICLE 10 COVENANTS.............................................................................................61
SECTION 10.1 Payment of Principal (and Premium, if any)
and Interest, if any....................................................................61
SECTION 10.2 Maintenance of Office or Agency.........................................................61
SECTION 10.3 Money for Debt Securities Payments to Be
Held in Trust...........................................................................62
SECTION 10.4 Payment of Taxes and Other Claims.......................................................64
SECTION 10.5 Maintenance of Properties...............................................................64
SECTION 10.6 Corporate Existence.....................................................................64
SECTION 10.7 Waiver of Certain Covenants.............................................................64
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ARTICLE 11 REDEMPTION OF DEBT SECURITIES.........................................................................65
SECTION 11.1 Applicability of This Article...........................................................65
SECTION 11.2 Election to Redeem; Notice to Trustee...................................................65
SECTION 11.3 Selection by Trustee of Debt Securities
to Be Redeemed..........................................................................66
SECTION 11.4 Notice of Redemption....................................................................66
SECTION 11.5 Deposit of Redemption Price.............................................................67
SECTION 11.6 Debt Securities Payable on Redemption Date..............................................67
SECTION 11.7 Debt Securities Redeemed in Part........................................................68
ARTICLE 12 SINKING FUNDS.........................................................................................68
SECTION 12.1 Applicability of This Article...........................................................68
SECTION 12.2 Satisfaction of Sinking Fund Payments With
Debt Securities.........................................................................69
SECTION 12.3 Redemption of Debt Securities for
Sinking Fund............................................................................69
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AMERICAN FINANCIAL GROUP, INC.
Reconciliation and tie showing the location in the Indenture
dated as of _____________________, 1997 of the provisions inserted pursuant to
Sections 310 through 318(a), inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture
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Section
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Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8
6.10 (d)
(c) Not Applicable
Section 311 (a) 6.13
(b) 6.13
(c) Not Applicable
Section 312 (a) 7.1
(b) 7.2
(c) 7.2
Section 313 (a) 7.3
(b) 7.3
(c) 7.3
(d) 7.3
Section 314 (a) 7.4
(b) Not Applicable
(c) 1.2
(c)(1) 1.2
(c)(2) 1.2
(c)(3) 1.2
(d) Not Applicable
(e) 1.2
(f) Not Applicable
Section 315 (a) 6.1(a)
(b) 6.2
(c) 6.1(b)
(d) 6.1(c)
Section 316 (a)(1)(A) 5.2 and 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.7
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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This is an INDENTURE dated as of ___________, 1997, between American
Financial Group, Inc., a corporation duly incorporated and existing under the
laws of Ohio (the "Company"), and Star Bank, N.A., a national banking
association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Debt Securities") evidencing
its unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Debt
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company proposes
to do all things necessary to make the Debt Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or any
series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions
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For all purposes of this Indenture and all Debt Securities issued
hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
generally accepted accounting principles as in effect and as implemented by the
Company at the time of their application; and
(4) 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.
Certain terms, used principally in Article 3 and Article 6, are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Debt Securities on behalf of the Trustee for the Debt Securities of any
series pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means (1) 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 or the Executive Committee of the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors or officer or officers to whom
the Board of Directors shall have duly delegated its authority, and delivered to
the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking
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institutions in that Place of Payment are authorized or obligated by law to
close.
"Capital Stock" means any and all shares of the Common Stock and any
class or series of preferred or preference stock of the Company, whether now
outstanding or issued after the date of this Indenture.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for as
a capital lease obligation under generally accepted accounting principles
consistently applied, and, for the purposes of this Indenture, the amount of
such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with such principles.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any Affiliate of the
Company, and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions, but such firm may be the
regular auditors employed by the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commission" means 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 instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the capital stock, par value $1.00 per share, of
the Company.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the Chairman
of the Board, a Vice Chairman of the Board, Chief Executive Officer, the
President, a Co-President or a Vice President and by the Treasurer, an Assistant
Treasurer, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, or (2) by any two Persons designated in a Company
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Order previously delivered to the Trustee for the Debt Securities of any series
by any two of the foregoing officers and delivered to the Trustee for the Debt
Securities of such series.
"Corporate Trust Office" means the office of the Trustee for Debt
Securities of any series at which at any particular time its corporate trust
business shall be principally administered, which as of the date of this
Indenture is located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
"Corporation" includes corporations, associations, joint-stock and
limited liability companies and business trusts.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means a Debt Security in global form established
pursuant to Section 2.3.
"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit
(other than letters of credit obtained in the ordinary course of business), or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services
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incurred in connection with capital expenditures (other than accounts payable or
other indebtedness to trade creditors arising in the ordinary course of
business), or (3) for the payment of money relating to a Capitalized Lease
Obligation; (b) any liability of others described in the preceding clause (a)
that the Person has guaranteed or that is otherwise its legal liability; and (c)
any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) and (b)
above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Lien" means any mortgage, lien, pledge, security interest, conditional
sale or other title retention agreement, charge or other security interest or
encumbrance of any kind.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or may be other counsel satisfactory to
the Trustee for the Debt Securities of any series.
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"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by bona
fide purchasers in whose hands the Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) Debt Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Debt Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Debt Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of such Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not the Company or any Affiliate of the
Company and (b) the principal amount of a Discounted Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration pursuant to Section 5.2.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock or limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
"Predecessor Debt Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by that particular Debt Security, and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.6 in
lieu of a mutilated, destroyed, lost or stolen Debt Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Debt
Security.
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the chief executive officer, the president, any vice president
(whether or not designated by a number or a word or words added before or after
the title "vice president"), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of such Trustee customarily performing functions
similar to those performed by any of the above designated officers and
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also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 9.5 hereof and except that any rules and regulations subsequently
prescribed by the Commission pursuant to Section 314(a) of that Act shall apply.
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
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"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and credit
obligations of such government and are not callable or redeemable at the option
of the issuer thereof.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions
------------------------------------
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, 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 shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as
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to whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee Delivered to
---------------------------------------------------
Trustee.
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In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied
17
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therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Debt Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee for
the appropriate series of Debt Securities and the Company and any agent of such
Trustee or the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
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(1) the Trustee for a series of Debt Securities by
any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with such Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder
shall be sufficient for every purpose hereunder if in writing
and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any
other address previously furnished in writing to such Trustee
by the Company (except as provided in paragraphs (3), (4) and
(5) of Section 5.1).
SECTION 1.6 Notice to Holders; Waiver
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee for such Debt Securities shall constitute a sufficient notification
for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee for such Debt
Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
19
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SECTION 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
-------------------
In any case any provision in this Indenture or in the Debt Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
-------------
This Indenture shall be governed by and construed in accordance with
the laws of the State of Ohio without regard to the conflicts of law rules of
such state.
SECTION 1.13 Non-Business Day.
----------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next
20
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succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
-----------------------------------------------------
Directors.
---------
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment of penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Debt Securities of each series
are solely corporate obligations, and that no personal liability whatever shall
attach to, or is incurred by, any incorporator, shareholder, officer or
director, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Debt Securities of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the Debt
Securities of each series.
ARTICLE 2
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
-----------------------
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution 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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers
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executing such Debt Securities, as evidenced by their execution of the Debt
Securities. If the form of Debt Securities of any series is established by
action taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Prior to the delivery of a Debt Security of any series in any
such form to the Trustee for the Debt Securities of such series for
authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of
Debt Security has been approved;
(2) An Officers' Certificate dated the date such Certificate
is delivered to such Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Debt Securities in such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such
form, when (a) completed by appropriate insertions and executed and
delivered by the Company to such Trustee in accordance with this
Indenture, (b) authenticated and delivered by such Trustee in
accordance with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board of
Directors and (c) issued in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the
Company, subject to applicable bankruptcy, reorganization, insolvency
and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
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"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
-----------------------------,
as Trustee
By
----------------------------
Authorized Officer"
SECTION 2.3 Debt Securities in Global Form.
------------------------------
If any Debt Security of a series is issuable in global form, such Debt
Security may provide that it shall represent the aggregate amount of Outstanding
Debt Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Debt Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and
in such manner as shall be specified in such Global Security. Any instructions
by the Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 1.2. Global Securities may
be issued in either temporary or permanent form.
None of the Company, the Trustee, any Paying Agent or the Debt Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
ARTICLE 3
THE DEBT SECURITIES
SECTION 3.1 Title; Payment and Terms.
------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
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The Debt Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Debt Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Debt Securities of that series (which
shall distinguish the Debt Securities of that series from all other
series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to Section 3.4,
3.5, 3.6, 9.6 or 11.7 or otherwise pursuant to any covenant permitting
the purchase of a portion of the Debt Securities of that series);
(3) the date or dates (or manner of determining the same) on
which the principal of the Debt Securities of that series is payable
(which, if so provided in such Board Resolution, may be determined by
the Company from time to time and set forth in the Debt Securities of
the series issued from time to time);
(4) the rate or rates (or the manner of calculation thereof)
at which the Debt Securities of that series shall bear interest (if
any), the date or dates from which such interest shall accrue (which,
in either case or both, if so provided in such Board Resolution, may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time), the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 10.2, the principal of (and premium, if any) and interest, if
any, on Debt Securities of that series shall be payable, any Debt
Securities of that series may be surrendered for registration of
transfer, any Debt Securities of that series may be surrendered for
exchange, and notices and demands to or upon the Company in respect of
the Debt Securities of that series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt
24
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Securities of that series may be redeemed, in whole or in part, at the
option of the Company;
(7) the obligation, if any, of the Company to redeem or
purchase Debt Securities of that series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debt Securities of that series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) the denominations in which any Debt Securities of that
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(9) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of that series which shall be
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(10) any addition to, or modification or deletion of, any
Events of Default or covenants of the Company with respect to the Debt
Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(11) if a Person other than Star Bank, N.A. is to act as
Trustee for the Debt Securities of that series, the name and location
of the Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 4.1, provisions for
the satisfaction and discharge of this Indenture with respect to the
Debt Securities of that series;
(13) any provision relating to the defeasance of the
obligations of the Company in connection with the Debt Securities of
that series;
(14) any provisions regarding exchangeability or conversion of
the Debt Securities of that series;
(15) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Securities and,
in such case, the U.S. Depositary for such Global Security or
Securities; whether such global form shall be permanent or temporary;
the manner in which and the circumstances under which Global Securities
representing Debt Securities of the series may be exchanged for Debt
Securities in definitive form, if other than, or in addition
25
-19-
to, the manner and circumstances specified in Section 3.5 hereof; the
extent to which, or the manner in which, any interest payable on any
Global Security on any Interest Payment Date will be paid, if other
than in the manner provided in Section 3.7; the manner in which the
principal of, or premium, if any, on, any Global Security will be paid,
if other than as set forth elsewhere herein; and
(16) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution relating thereto. The terms of
such Debt Securities, as set forth above, may be determined by the Company from
time to time if so provided in or established pursuant to the authority granted
in a Board Resolution. Any of the terms of the Debt Securities, as set forth
above, may be made dependent upon facts ascertainable outside the Board
Resolution provided that the manner in which said facts shall operate upon the
terms is set forth in the Board Resolution. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities of such
series.
SECTION 3.2 Denominations.
-------------
Unless otherwise provided with respect to any series of Debt Securities
as contemplated by Section 3.1, all Debt Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, or its President, a
Co-President or one of its Vice Presidents. The Debt Securities shall be so
executed under the corporate seal of the Company reproduced thereon and attested
to by its Secretary or any one of its Assistant Secretaries. The signature of
any of these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior
26
-20-
to the authentication and delivery of such Debt Securities or did not hold such
offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for the Debt Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate and Opinion of
Counsel otherwise required pursuant to Sections 1.2 and 2.1 at or prior to the
time of authentication of each Debt Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein manually executed by the Trustee for such Debt Security or on its behalf
pursuant to Section 6.14, and such certificate upon any Debt Security shall be
conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
27
-21-
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities.
---------------------------------------------------------
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Debt Securities may determine, as evidenced by
their execution of such Debt Securities.
If temporary Debt Securities of any particular series are issued, the
Company will cause definitive Debt Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive Debt
Securities, the temporary Debt Securities of such series shall be exchangeable
for such definitive Debt Securities and of a like Stated Maturity and with like
terms and provisions upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any particular series, the Company shall
execute and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Debt Security of such series) the Trustee
for the Debt Securities of such series shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
authorized denominations of the same series and of a like Stated Maturity and
with like terms and provisions. Until exchanged as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the same
series and with like terms and conditions authenticated and delivered hereunder.
28
-22-
SECTION 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other
29
-23-
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Debt Securities, other than exchanges pursuant to
Section 3.4, 9.6, 11.3 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.4 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S. Depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of
30
-24-
a Company Order for the authentication and delivery of definitive Debt
Securities of such series, will authenticate and deliver, Debt Securities of
such series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive
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Debt Securities to the Persons in whose names such Debt Securities are so
registered.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee for
such Debt Security, or the Company and the Trustee for a Debt Security receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and (ii) there is delivered to the Company, the Debt Security
Registrar and such Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Debt Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt
Security, a new Debt Security of the same series and in a like principal amount
and of a like Stated Maturity and with like terms and conditions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company, the Debt Security
Registrar and the Trustee for such Debt Security such security or indemnity as
may be required by them to save each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Company and such
Trustee and any agent of either of them of the destruction, loss or theft of
such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and
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proportionately with any and all other Debt Securities of the same series, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of that
series (or their respective Predecessor Debt Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee for the Debt Securities of such
series in writing of the amount of Defaulted Interest proposed to be
paid on each Debt Security of that series and the date of the proposed
payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such series) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to such Trustee for
such deposit prior to the date of the proposed
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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 such Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by such Trustee of
the notice of the proposed payment. Such 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 of Debt Securities
of that series at such Holder's address as it appears in the Debt
Security Register not less than 10 days prior to such Special Record
Date. Such Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least
once in a newspaper published in the English language customarily on
each Business Day and of general circulation in New York, New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Debt Securities of that series (or
their respective Predecessor Debt Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Debt Securities of any particular series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Debt Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice is given by the Company to
the Trustee for the Debt Securities of such series of the proposed
manner of payment pursuant to this clause, such manner of payment shall
be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
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SECTION 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and neither the
Company, such Trustee nor any agent of the Company or such Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation.
------------
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Debt Securities, be delivered to such Trustee and shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and a certificate of disposition evidencing such disposition
of Debt Securities shall be provided to the Company by such Trustee.
SECTION 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any particular series, interest on the
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Debt Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any
----------------------------------------------------
Series.
------
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Debt Securities of
such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in the
last paragraph of Section 10.3) have been delivered to such Trustee for
cancellation; or
(B) with respect to all Outstanding Debt Securities
of such series described in (A) above not theretofore so delivered to
the Trustee for the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to be
deposited with such Trustee as trust funds in trust an amount
(except as otherwise specified pursuant to Section 3.1 for the
Debt Securities of such series), sufficient to pay and
discharge the entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium, if any)
and interest, if any, to the Stated Maturity or any Redemption
Date as contemplated by Section 4.2, as the case may be; or
(ii) the Company has deposited or caused to be
deposited with such Trustee as obligations in trust such
amount of U.S. Government Obligations as will, as
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evidenced by a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, together with the
predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient to
pay and discharge when due the entire indebtedness on all such
Outstanding Debt Securities of such series for unpaid
principal (and premium, if any) and interest, if any, to the
Stated Maturity or any Redemption Date as contemplated by
Section 4.2, as the case may be; or
(iii) the Company has deposited or caused to be
deposited with such Trustee in trust an amount equal to the
amount referred to in clause (i) or (ii) in any combination;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness on all Debt Securities of such
series have been complied with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of
such deposit or are not to be called for redemption within one year of
the date of such deposit under arrangements satisfactory to such
Trustee as of the date of such deposit, then the Company shall have
given, not later than the date of such deposit, notice of such deposit
to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
2under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.6 (except that Debt
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Securities of such series issued upon registration of transfer or exchange or
in lieu of mutilated, destroyed, lost or stolen Debt Securities shall not be
obligations of the Company) and Sections 7.1 and 10.2; and provided, further,
that in the event a petition for relief under the Bankruptcy Act of 1978 or
Title 11 of the United States Code or a successor statute is filed and not
discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Debt Securities of such series shall not be
discharged, and in such event the Trustee shall return such deposited funds or
obligations as it is then holding to the Company upon Company Request.
SECTION 4.2 Application of Trust Money.
--------------------------
(a) All money and obligations deposited with the Trustee for any series
of Debt Securities pursuant to Section 4.1 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest, if any, on the Debt Securities for the
payment of which such money and obligations have been deposited with such
Trustee. If Debt Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would
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then have been required to be deposited for the purpose for which such money or
U.S. Government Obligations were deposited or received provided such delivery
can be made without liquidating any U.S. Government Obligations.
SECTION 4.3 Satisfaction and Discharge of Indenture.
---------------------------------------
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
SECTION 4.4 Reinstatement.
-------------
If the Trustee for any series of Debt Securities is unable to apply any
of the amounts (for purposes of this Section 4.4, "Amounts") or U.S. Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 4.1
until such time as the Trustee for such series is permitted to apply all such
Amounts or U.S. Government Obligations, as the case may be, in accordance with
the provisions of Section 4.1; provided, however, that if, due to the
reinstatement of its rights or obligations hereunder, the Company has made any
payment of principal of (or premium, if any) or interest, if any, on such Debt
Securities, the Company shall be subrogated to the rights of the Holders of such
Debt Securities to receive payment from such Amounts or U.S. Government
Obligations, as the case may be, held by the Trustee for such series.
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ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default.
-----------------
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon
any Debt Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant
or warranty of the Company in respect of any Debt Security of that
series contained in this Indenture or in such Debt Securities (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which
expressly has been included in this Indenture solely for the benefit of
Debt Securities of a series other than that series) or in the
applicable Board Resolution under which such series is issued as
contemplated by Section 3.1 and continuance of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee for the Debt Securities
of such series or to the Company and such Trustee by the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of
that 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
(4) if an event of default with respect to any other series of
Debt Securities or as defined in any mortgage, indenture, security
agreement or other instrument under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the
Company for money
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borrowed in excess of $10 million principal amount, whether such
Indebtedness now exists or shall hereafter be created, shall happen
and, if such Indebtedness is not already matured in accordance with its
terms, shall result in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due
and payable, and such acceleration shall not have been rescinded or
annulled or such Indebtedness shall not have been discharged, in either
case, within a period of ten days after there has been given, by
registered or certified mail in the manner set forth in Section 1.5, to
the Company by the Trustee for the Debt Securities of that particular
series referred to in the first clause of this Section 5.1 or to the
Company and such Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of that particular series
referred to in the first clause of this Section 5.1 a written notice
specifying such event of default and requiring the Company to cause
such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice
of Default" hereunder; provided, that if prior to the entry of judgment
in favor of the Trustee, such default under such indenture or
instrument shall be remedied or cured by the Company or waived by the
holders of such Indebtedness, then the Event of Default hereunder shall
be deemed likewise to have been remedied, cured or waived; and
provided, further, that, if such default results from an action of the
United States government or a foreign government which prevents the
Company from performing its obligations under such agreement, indenture
or instrument, as evidenced by an Officer's Certificate delivered to
the Trustee, the occurrence of such default will not be an Event of
Default hereunder; and provided, further, however, that, subject to the
provisions of Sections 6.1 and 6.2, such Trustee shall not be deemed to
have knowledge of such default unless either (A) a Responsible Officer
of such Trustee assigned to its Corporate Trust Office shall have
actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from the Holders of 10% or
more in principal amount of the Outstanding Debt Securities of such
other series, from the holder of any such Indebtedness or from the
trustee under any such mortgage, indenture, security agreement or other
instrument; or
(5) the entry against the Company of one or more judgments,
decrees or orders by a court having jurisdiction in the premises from
which no appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $10 million and the
continuance of such judgment, decree or order unsatisfied and in effect
for
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any period of 60 consecutive days without a stay of execution and there
has been given, by registered or certified mail in the manner set forth
in Section 1.5, to the Company by the Trustee for the Debt Securities
of such series or to the Company and such Trustee by the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of
such series a written notice specifying such entry and continuance of
such judgment, decree or order and stating that such notice is a
"Notice of Default" hereunder; provided, however, that subject to the
provisions of Sections 6.1 and 6.2, such Trustee shall not be deemed to
have knowledge of such entry and continuance of such judgment, decree
or order unless either (A) a Responsible Officer of such Trustee
assigned to its Corporate Trust Office shall have actual knowledge
thereof or (B) the Trustee shall have received written notice thereof
from the Company or from the Holders of 10% or more in principal amount
of the Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking
to have an order for relief entered on its behalf as debtor or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or the
Company shall apply for a receiver, custodian or trustee (other than
any trustee appointed as a mortgagee or secured party in connection
with the issuance of indebtedness for borrowed money of the Company) of
it or for all or a substantial part of its property; or the Company
shall make a general assignment for the benefit of creditors; or the
Company shall take any corporate action in furtherance of any of the
foregoing; or
(7) any case or proceeding against the Company shall be
commenced seeking to have an order for relief entered against it or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a
mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for
all or a substantial part of its property shall be appointed in any
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such case or proceeding; and such case or proceeding (A) results in the
entry of an order for relief or a similar order against it or (B) shall
continue unstayed and in effect for a period of 60 consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Debt Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay
(A) all overdue interest on all Debt Securities of
that series;
(B) the principal of (and premium, if any, on) any
Debt Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon
from the date such principal became due at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity), to the extent that the payment
of such interest shall be legally enforceable;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at a rate per
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annum equal to the rate borne by the Debt Securities of such
series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee under
Section 6.7; and
(2) all Events of Default with respect to the Debt Securities
of such series, other than the nonpayment of the principal of Debt
Securities of that series which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Debt Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security of any series at its Maturity,
the Company will, upon demand of the Trustee for the Debt Securities of
such series, pay to it, for the benefit of the Holders of such Debt
Securities, the whole amount then due and payable on such Debt
Securities for principal (and premium, if any) and interest, if any,
with interest upon the overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at a rate per annum equal to
the rate borne by such Debt Securities (or, in the case of Discounted
Debt Securities, the Debt Securities' Yield to Maturity); and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee under
Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the
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collection of the sums so due and unpaid, and may prosecute such proceedings to
judgment or final decree, and may enforce the same against the Company and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, wherever situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4 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 relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal 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 (or lesser amount in the case of Discounted Debt Securities)
(and premium, if any) and interest, if any, owing and unpaid in respect
of the Debt Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of such Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee under Section 6.7)
and of the Holders of the Debt Securities of such series allowed in
such judicial proceeding;
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and
(iii) unless prohibited by law or applicable regulations, to
vote on behalf of the Holders of the Debt
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Securities of such series in any election of a trustee in bankruptcy or
other person performing similar functions; and any receiver, assignee,
trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Holder of Debt
Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to
the Holders of Debt Securities, to pay to such Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel, and any other amounts
due such Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee for
the Debt Securities of any series to authorize or consent to or accept or adopt
on behalf of any Holder of a Debt Security any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for the
Debt Securities of any series to vote in respect of the claim of any Holder in
any such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debt
-----------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the
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payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits.
-------------------
No Holder of any Debt Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of
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the Outstanding Debt Securities of that series; it being understood and
intended that no Holder or Holders of Debt Securities of that series
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Debt Securities of that
series, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders of Debt Securities of that series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal (and
--------------------------------------------------------
Premium, if any) and Interest, if any.
-------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee for the Debt Securities of any series or any Holder of a
Debt Security has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders of Debt
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of such Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
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remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series
affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
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ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series 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.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of this Indenture shall require the Trustee
for any series of Debt Securities to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee for any series of Debt Securities
shall be subject to the provisions of this Section.
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SECTION 6.2 Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such 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 such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 6.1:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
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(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee security or indemnity reasonably satisfactory to such
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters at it may
see fit, and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and such Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt
------------------------------------------------
Securities.
----------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication thereof, shall be taken as the
statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities of any series. Neither the Trustee for any series of Debt
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
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SECTION 6.5 May Hold Debt Securities.
------------------------
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
-------------------
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt
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Securities shall have a lien prior to the Debt Securities upon all property and
funds held or collected by such Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest, if any, on any
particular series Debt Securities. Such lien shall survive satisfaction and
discharge of this Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
---------------------------------------
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
--------------------------------------------------
Different Series; Eligibility.
-----------------------------
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination by Federal, State
or District of Columbia authority. A different Trustee may be appointed by the
Company for each series of Debt Securities prior to the issuance of such Debt
Securities. If the initial Trustee for any series of Debt Securities is to be
other than Star Bank, N.A., the Company and such Trustee shall, prior to the
issuance of such Debt Securities, execute and deliver an indenture supplemental
hereto, which shall provide for the appointment of such Trustee as Trustee for
the Debt Securities of such series and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee. If at any
time the Trustee for the Debt Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months unless the Trustee's duty to resign is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove such Trustee or (ii) any Holder who has been a bona fide Holder
of a Debt Security of such
56
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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 such Trustee and the appointment of a successor Trustee.
(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 6.11, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
--------------------------------------
(a) Every such successor Trustee appointed hereunder with respect to
the Debt Securities of any series shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the
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request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject to the lien
provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all
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such rights, powers and trusts referred to in Subsections (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee or the Authenticating Agent, as
the case may be, for the Debt Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee for any particular series of Debt Securities shall comply
with Section 311(a) of the Trust Indenture Act for that particular series of
Debt Securities, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
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SECTION 6.14 Authenticating Agents.
---------------------
From time to time the Trustee for the Debt Securities of any series
may, subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Debt Securities of such series, which may include the
Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 3.4, 3.5, 3.6 and 11.7,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this Indenture,
the authentication and delivery of Debt Securities of such series by an
Authenticating Agent for such Debt Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Debt Securities "by the
Trustee" for the Debt Securities of such series. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any State, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually pursuant to law or the requirements of such
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent for any series of Debt
Securities shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Authenticating Agent for any series of Debt Securities may resign
at any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Debt Securities 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 in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent for any
series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth
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in Section 1.6. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee for the Debt Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 6.7.
If an appointment with respect to one or more series of Debt Securities
is made pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
"This is one of the Debt Securities, of the series designated herein, described
in the within-mentioned Indenture.
STAR BANK, N.A.
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer"
ARTICLE 7
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish Trustee
-------------------------------------------------------
Names and Addresses of Holders.
------------------------------
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
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SECTION 7.2 Communications to Holders
-------------------------
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefited by
this Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
SECTION 7.3 Reports by Trustee.
------------------
Within 60 days after November 15 of each year commencing with the year
following the first issuance of Debt Securities, the Trustee for the Debt
Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is
mailed to the Holders of any particular series of Debt Securities, a copy of
such report shall be filed with the Commission and with each securities
exchange, if any, on which the Debt Securities of such series are listed. With
respect to each series of Debt Securities, the Company will notify the
applicable Trustee when such series of Debt Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company.
------------------
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety to any Person
unless:
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(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.2 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the
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Company herein and thereafter the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debt Securities and,
in the event of any such consolidation, merger, conveyance or transfer, the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up, or liquidated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Star Bank,
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N.A. as Trustee for a series of Debt Securities and to add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 6.9; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
-----------------------------------------------
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the
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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 such Debt Securities under this Indenture, but only with the
consent of the Holders of more than 50% in aggregate principal amount of the
Outstanding Debt Securities of each series of Debt Securities then Outstanding
affected thereby, in each case by Act of said Holders of Debt Securities of each
such series delivered to the Company and the Trustee for Debt Securities of each
such series; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security affected
thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, or
reduce the principal amount thereof or the rate of interest thereon, if
any, or any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discounted Debt Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the Place of Payment, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any particular series, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section
5.13 or 10.8, 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 Debt Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Debt Security with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 10.8, or the deletion of this proviso, in
accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6) and
9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such
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covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures.
-------------------------------------------------------
Debt Securities of any particular series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee for the Debt Securities of such series,
bear a notation in form approved by such Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee for the Debt Securities of such series and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and
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delivered by such Trustee in exchange for Outstanding Debt Securities of such
series.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal (and Premium, if any) and Interest,
-------------------------------------------------------
if any.
------
The Company agrees, for the benefit of each particular series of Debt
Securities, that it will duly and punctually pay (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of such series) the principal of
(and premium, if any) and interest, if any, on that series of Debt Securities in
accordance with the terms of the Debt Securities of such series and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for a series of Debt
Securities an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee for the Debt Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Debt Securities or shall fail to furnish the Trustee for the Debt
Securities of that series with the address thereof, such presentations (to the
extent permitted by law) and surrenders of Debt Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of such Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee for the Debt Securities of each series
so affected of any such
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designation or rescission and of any change in the location of any such office
or agency.
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.
------------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Debt Securities, it will, on or not more
than one Business Day before each due date of the principal of (and premium, if
any) or interest, if any, on any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum (except as otherwise specified pursuant to Section 3.1 for the Debt
Securities of such series) sufficient to pay the principal (and premium, if any)
and interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Debt Securities of such series of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Debt Securities other than the Trustee for the Debt Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Debt Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give such Trustee notice of any default by the Company in
the making of any payment of principal (or premium, if any) and
interest, if any, on Debt Securities of that series;
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(3) at any time during the continuation of any such default,
upon the written request of such Trustee, forthwith pay to such Trustee
all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights
and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
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SECTION 10.4 Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 10.5 Maintenance of Properties.
-------------------------
The Company shall cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 10.6 Corporate Existence.
-------------------
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of this Indenture.
SECTION 10.7 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 to 10.7, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
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principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF DEBT SECURITIES
SECTION 11.1 Applicability of This Article.
-----------------------------
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture shall be made in accordance with such form of
Debt Security and this Article; provided, however, that if any provision of any
such form of Debt Security shall conflict with any provision of this Article,
the provision of such form of Debt Security shall govern.
SECTION 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Debt Securities of any series
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 30 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to authorize
the Debt Security Registrar to select the Debt Securities to be redeemed
pursuant to Section 11.3. In the case of any redemption of Debt Securities of
any series prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee for Debt Securities of such series with an
Officers' Certificate evidencing compliance with such restriction.
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SECTION 11.3 Selection by Debt Security Registrar of Debt Securities
-------------------------------------------------------
to Be Redeemed.
--------------
If less than all the Debt Securities are to be redeemed, the Company
may select the series to be redeemed, and if less than all the Debt Securities
of any series are to be redeemed, the particular Debt Securities of that series
to be redeemed shall be selected not more than 30 days prior to the Redemption
Date by the Debt Security Registrar for the Debt Securities of such series, from
the Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Debt Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of that
series, or any integral multiple thereof) of the principal amount of Debt
Securities of that series of a denomination larger than the minimum authorized
denomination for Debt Securities of that series pursuant to Section 3.2.
The Debt Security Registrar for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Securities which has
been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee for such Debt Securities in the name and at the expense of the
Company.
SECTION 11.5 Deposit of Redemption Price.
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Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Debt Securities to be redeemed or with a
Paying Agent for such Debt Securities (or, if the Company is acting as its own
Paying Agent for such Debt Securities, segregate and hold in trust as provided
in Section 10.3) an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such Series) sufficient to pay the
principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 11.6 Debt Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 3.1 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company at
the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 3.1, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
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If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 11.7 Debt Securities Redeemed in Part.
--------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.1 Applicability of This Article.
-----------------------------
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 62. Each
sinking fund payment shall be applied to the redemption of Debt Securities of
any particular series as provided for by the terms of Debt Securities of that
series.
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SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
-----------------------------------------------
Securities.
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The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of that series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 12.2 and shall state the basis for such credit
and that such Debt Securities have not previously been so credited and will also
deliver to such Trustee any Debt Securities to be so delivered. Such Trustee
shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 11.5, 11.6 and 11.7.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 199_ to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
199_.
AMERICAN FINANCIAL GROUP, INC.
[SEAL]
By:_______________________________
Title:____________________________
Attest:
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STAR BANK, N.A., Trustee
By:_______________________________
Title_____________________________
Attest:
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